Comments on: Blog Round-Up – Thursday, December 1st http://www.scotusblog.com/2005/12/blog-round-up-thursday-december-1st/ The Supreme Court of the United States blog Mon, 23 Jan 2012 22:38:26 +0000 hourly 1 http://wordpress.org/?v=3.2.1 By: Tim Dowling http://www.scotusblog.com/2005/12/blog-round-up-thursday-december-1st/#comment-8433 Tim Dowling Sat, 03 Dec 2005 14:11:47 +0000 http://www.scotusblog.com/wp/uncategorized/blog-round-up-thursday-december-1st/#comment-8433 Marty criticizes Alito for “going out of one's way in the mid-80s to emphasize how one's philosophy was formed by that youthful dalliance with [National Review].” I normally find Marty’s posts to be very thoughtful and illuminating, but this borders on the silly. NR did not virulently oppose the civil rights movement, as Marty asserts. It certainly did oppose various federal civil rights bills as unconstitutional, a position emphatically rejected by the Supreme Court, but one with some support among responsible scholars at the time. It is irresponsible to suggest that Buckley, NR, or NR’s subscribers should be viewed with suspicion. NR was Reagan’s favorite magazine and had a tremendous influence on countless conservatives. It is not surprising Alito would mention it. This shouldn’t (and I suspect won’t) be a relevant factor in the Senate’s deliberations. Marty criticizes Alito for “going out of one’s way in the mid-80s to emphasize how one’s philosophy was formed by that youthful dalliance with [National Review].”

I normally find Marty’s posts to be very thoughtful and illuminating, but this borders on the silly. NR did not virulently oppose the civil rights movement, as Marty asserts. It certainly did oppose various federal civil rights bills as unconstitutional, a position emphatically rejected by the Supreme Court, but one with some support among responsible scholars at the time. It is irresponsible to suggest that Buckley, NR, or NR’s subscribers should be viewed with suspicion.

NR was Reagan’s favorite magazine and had a tremendous influence on countless conservatives. It is not surprising Alito would mention it. This shouldn’t (and I suspect won’t) be a relevant factor in the Senate’s deliberations.

]]> By: Marc Shepherd http://www.scotusblog.com/2005/12/blog-round-up-thursday-december-1st/#comment-8432 Marc Shepherd Fri, 02 Dec 2005 13:55:50 +0000 http://www.scotusblog.com/wp/uncategorized/blog-round-up-thursday-december-1st/#comment-8432 I agree that if this case post-dated the 1996 act, federal courts were required to consider exhaustion whether raised by the parties or not. However, given the timing, this case was most likely not subject to the act. It is unlikely that the panel would have been unaware of such a well publicized requirement, and evidently neither the majority nor the dissent mentioned it. However, regardless of the timing, Judge Alito's approach was improper. When a court raises an issue sua sponte, the appropriate course is to request briefing from the parties, which clearly Judge Alito did not do. I agree that if this case post-dated the 1996 act, federal courts were required to consider exhaustion whether raised by the parties or not. However, given the timing, this case was most likely not subject to the act. It is unlikely that the panel would have been unaware of such a well publicized requirement, and evidently neither the majority nor the dissent mentioned it.

However, regardless of the timing, Judge Alito’s approach was improper. When a court raises an issue sua sponte, the appropriate course is to request briefing from the parties, which clearly Judge Alito did not do.

]]> By: Kent Scheidegger http://www.scotusblog.com/2005/12/blog-round-up-thursday-december-1st/#comment-8431 Kent Scheidegger Thu, 01 Dec 2005 19:16:50 +0000 http://www.scotusblog.com/wp/uncategorized/blog-round-up-thursday-december-1st/#comment-8431 The Mannheimer post referred to in this post attacks Judge Alito for raising <em>sua sponte</em> the issue of whether a state prisoner had exhausted his state-court remedies before turning to the federal courts. The post does not mention the date of the case, but states the author was clerking at the time "from 1996 to 1997." Effective April 24, 1996, Congress amended the statute to <em>require</em> federal courts to consider exhaustion any time the state does not expressly waive it. See 28 U.S.C. § 2254(b)(3). It was not required prior to that date, but exhaustion is an important element of federal-state comity going back to the 1880's, and it was certainly not improper to consider it <em>sua sponte</em>. Depending on the timing, Judge Alito's consideration of the issue was either required by statute or permitted by considerations of comity. Either way, the criticism is off base. The Mannheimer post referred to in this post attacks Judge Alito for raising sua sponte the issue of whether a state prisoner had exhausted his state-court remedies before turning to the federal courts. The post does not mention the date of the case, but states the author was clerking at the time “from 1996 to 1997.”

Effective April 24, 1996, Congress amended the statute to require federal courts to consider exhaustion any time the state does not expressly waive it. See 28 U.S.C. § 2254(b)(3). It was not required prior to that date, but exhaustion is an important element of federal-state comity going back to the 1880′s, and it was certainly not improper to consider it sua sponte.

Depending on the timing, Judge Alito’s consideration of the issue was either required by statute or permitted by considerations of comity. Either way, the criticism is off base.

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