Blog Round-up – Thursday, October 13th
On the Miers Nomination:
Concurring Opinions has this post asking,”Is The Nation really willing to endorse originalism in order to score a few points against corporations and Harriet Miers?” The post is in response to this article by Morton Mintz titled, “Ten Questions for Harriet Miers.”
TaxProf Blog asks, “Is Miers a Tax Textualist?”
Professor Bainbridge is running a poll to gauge the status of the Miers nomination. Professor Bainbridge also live blogged a conference call with RNC Chairman Ken Mehlman and bloggers regarding the Harriet Miers nomination.
Think Progress has this post titled, “The Right, Religion and The Supreme Court: What a Difference a Month Makes.” The post remarks on a USA Today article which posits that since the White House hasn’t been able to convince its allies to support its Supreme Court nominee, it has had “to add a dimension to its portrait of Miers,” namely, her religion.
On Recent SCOTUS Cases:
Criminal Appeal has this post on the Supreme Court’s per curiam reversal of Sixth Circuit in a federal habeas case, Dye v. Hofbauer. Sentencing Law & Policy also has this post on the case.
PropertyProf Blog has this post on Justice O’Connor, Midkiff and Kelo. The authors of the post used conference notes, and other research from the files of past Supreme Court Justices, on the Court’s major takings cases to draw their conclusions.
ACSBlog has this post on the Supreme Court’s decision to hear three cases that attempt to limit the federal government’s power to protect hundreds of millions of acres of wetlands under the 1972 Clean Water Act.
Balkinization guest blogger David Luban has this post on what’s at stake in Hamdan.
Finally, the University of Chicago Faculty Blog has this post titled, “The Myth that Justices Change on the Bench.”
Like so many opponents of originalism, the Concurring Opinions post cited does not attack real originalism but rather sets up a straw man and then knocks it down:
“Of course, such a reading creates a blinding assortment of new problems for progressives. For example, the fact that the 1868 understanding of the Fourteenth Amendment didn’t cover women. Or Hispanics. Or gays. Or anyone else except for newly freed slaves. And yes, it didn’t cover corporations. So Mr. Mintz is right, in a sense. Originalism is certainly one way to restrict the rights of corporations — and everyone else.”
Nothing in the jurisprudence of original understanding limits words to the particular evil that the enacting authority sought to address. The Reconstruction Congress was, of course, primarily concerned with the freedmen, and for good reason. However, Congress used the inclusive word “persons,” and to say this excluded everyone else is preposterous. The amendment was only eighteen years old when the Supreme Court applied it to the Chinese without a single dissenting vote. See Yick Wo v. Hopkins, 118 U.S. 356 (1886). From the summary of argument in the L.Ed., it does not appear that the respondent even bothered to argue the amendment did not apply.
Comment by Kent Scheidegger — October 13, 2005 @ 2:01 pm
A little off the topic, but does anyone know if Roberts is wearing a gold-striped robe?
Comment by Jacob — October 16, 2005 @ 10:50 am