Round-Up
First up, Georgetown Professor Neal Katyal, who argued for Hamdan in front of the Supreme Court, has an op-ed at Slate arguing that we ought to use courts-martial to try detainees. His article is here.
At Prawfsblog, a debate has been taking place over the proper role of stare decisis and exactly who is bound by precedent. This post, by Russell Convey, is a good entry point.
Justice Kennedy spoke at a judicial conference on Monday and lamented the status of sentencing guidelines; an article about his speech can be found here.
Finally, as part of our ongoing but sporadic feature highlighting proposed bills that are unlikely to become law, here is a story from the Courthouse News Service reporting that, “Texas Republican Rep. Ron Paul has submitted a bill that would strip the U.S. Supreme Court of power to review the constitutionality of state laws that affect religion, privacy, sexual practices, sexual orientation, marriage or reproduction.” To read the nobly-titled “We the People” Act (otherwise known as H. R. 5739) in its entirety, click here.
Why is it that every time some academic decides to defend freedom by getting psycopathic terrorists sprung from prison, he turns out to be from Georgetown? Don’t the professors at Georgetown nowadays have something better to do than serve as Al Qaeda’s outside counsel?
Seriously, I’m an alumn, and it’s getting embarrassing to see these fools in action day in and day out. I’ve already stopped giving (after I saw some of the work they did with their new clinics). What else can I do? It’s getting to the point where I won’t even want to tell anyone I went there.
Comment by Some Guy — July 13, 2006 @ 8:40 am
Guy,
What is it about Prof. Katyal’s actions you find so disturbing? Assuming you attended Georgetown Law, you must certainly be aware of due process for the accused? Should not a man accused of a crime avail himself of a transparent process? Isn’t the argument not that the detainees should be released outright, but that the process they are being subjected to is flawed? Hardly the same thing. Aren’t you also being a bit hasty in labelling all of the Guantanamo detainees as al Qaeda and “psycopathic terrorists” (sic)?
You can run from the alumni associations, but you can never hide from them.
Comment by 14th Amendment — July 13, 2006 @ 9:32 am
I find it ironic about the “We The People Act” that if it were to pass (not going to happen I know but just for fun) then Roe v. Wade, Lawrence v. Texas and the Establishment Clause cases could never be overturned. Given the fact that the bill does not seek to limit jurisdiction of circuit courts and the fact that circuit courts would still be bound by those cases, the original rulings would still be enforced with no way of overturning them. (Unless the author hopes that Circuit Courts will just ignore the rulings knowing they cannot get reversed.)
The other scary thing is that the author actually got 5 other people to sign onto to this thing.
Comment by ggulaw1L — July 13, 2006 @ 9:59 am
GGulaw1L-
I actually just took a closer look at the bill, and here is a line you might find interesting:
“SEC. 7. CASES DECIDED UNDER ISSUES REMOVED FROM FEDERAL JURISDICTION NO LONGER BINDING PRECEDENT.
Any decision of a Federal court, to the extent that the decision relates to an issue removed from Federal jurisdiction under section 3, is not binding precedent on any State court.”
So, the bill not only would rip jurisdiction on these issues from the entire federal court system, but it would effectively wipe away hundreds of years of precedent on all of these issues. It’s one powerful bill.
Comment by Jason Harrow — July 13, 2006 @ 10:25 am
Mr. Harrow,
It seems to me that the ruling in City of Boerne v. Flores would make the statement in Sec. 7 unconstitutional. By my reading of that case, no constitutional pronouncements by the Supreme Court may not be overturned by legislation. So unless the bill would also deprive the Court of its jurisdiction to review the “We the People” Act, then the law would likely be found unconstitutional.
Comment by Worthless1L — July 13, 2006 @ 11:43 am
Worthless1L-
Indeed, this bill certainly appears to present quite a Mobius strip of jurisdictional questions. After all, if the “We the People Act” is supposed to deprive the Supreme Court of the ability to review the constutionality of that very bill, then we ought to be able to ask the question, “Is THAT provision constitutional?” But, of course, who knows if that question can itself be reviewed.
In other words, what is needed here is serious analysis by a philosopher or mathematician who knows about such infinitely descending series, but we do not have access to those services here at SCOTUSblog (though I confess that I was an undergraduate philosophy major). I will keep hunting around the web to see if anyone has seriously discussed the implications of this bill and post something to the blog if I find out.
-Jason
Comment by Jason Harrow — July 13, 2006 @ 11:57 am
Oops, the double negative there was unintentional (I haven’t had my coffee yet)
Comment by Worthless1L — July 13, 2006 @ 11:59 am
Paul’s proposed legislation reflects frustration with a Supreme Court that has gone too far in many areas.
Personally, I think that sodomy laws etc. are completely ridiculous, but that does not change the fact that the people should have the right to enact them. The Supreme Court has said otherwise, and in doing so, exercised raw naked power, not judgment. If that’s how the Supreme Court is going to operate, then its supporters cannot wonder why there’s push-back from legislators looking at using their power over the Supreme Court’s jurisdiction.
Comment by federalist — July 13, 2006 @ 12:09 pm
Jason-
I actually don’t think that this creates a “Mobius strip of jurisdictional questions” given that §4(1) actually says that the bill does not “prevent[ ] [the courts] from determining the constitutionality of any Federal statute or administrative rule.” However, I think this discussion is about as pointless as the original proposal of the bill, as I agree with you that it will never be passed.
-W1L
Comment by Worthless1L — July 13, 2006 @ 12:32 pm
The “We the People Act” is merely another shameless congressional trick. Rep. Paul, frustrated that the courts are issuing rulings with which he differs, is now attempting to undo over 200 years of precedence. His bill, if passed, would flood state courts with all sorts of challenges, and would result in a byzantine maze of applicable case law. Goodbye, republic.
Of course what it really does is create a campaign litmus test. A vote against a gutting of the federal judiciary will become a vote in favor of homosexuality, abortion, and atheism. When the dust is settled on this election year, future historians will regard this bread-and-circus congress with the bemused question, did they really have nothing better to do?
Comment by 14th Amendment — July 13, 2006 @ 2:04 pm
14A:
It never ceases to amaze me how people incessantly whine about criticism of courts and attempts to rein them in. People like you say, “Well, the Court said so, so it’s the law of the land and you have to respect it.” But Congress’ ability to rein in the Supreme Court is also part of the law of the land, and if the people decide that enough is enough and wish to withdraw jurisdiction from the federal courts, that is their right.
The Supreme Court has enacted its policy preferences as law for long enough: Lawrence, Roe, Roper etc. etc. The Framers have provided a remedy.
Comment by federalist — July 13, 2006 @ 2:32 pm
Actually, Federalist, the Framers’ original remedy for activist judges was quartering by horses after trial in a military commission, but seeing as such commissions are irregularly constituted and quartering by horses offends the evolving standards of decency in a civilized nation…it seems we don’t have that remedy anymore.
Comment by Commentator — July 13, 2006 @ 2:44 pm
Federalist,
I think that your interpretation of Roe, Lawrence, etc. is a little unfair. Calling those cases “policy preferences” is to be accusing the Court of a dereliction of their duty to faithfully interpret acts of Congress. It seems to me that those cases are simply logical outgrowths of Griswold, and assuming that the Court accepts Griswold as good law, they are faithfully executing their responsibilities.
If, however, the people dislike the Constitutional pronouncements of the Court, then I think that the more appropriate way to ‘fix’ the problem would be to change the Constitution. If the Congress simply deprives the courts of their jusrisdiction to hear certain types of case, then they are: 1.) tacitly acknowledging that the current interpretation of the constition is correct, but are making the law unenforcable and 2.)creating volitility in our laws (what happens when the congress is full of gay atheists who want abortions?).
Comment by Worthless1L — July 13, 2006 @ 3:06 pm
I think that Supreme Court would find jurisdiction to review the constitutionality of the bill in the most straightforward of ways: by holding that courts always have jurisdiction to determine whether they have jurisdiction!
So, the Court would face, for example, a privacy-based challenged to a state law. It would then say that it normally has jurisdiction to review federal questions presented by the challenge. The only way that it doesn’t is if the new statute divests it of jurisdiction. Well, the new statute divests it of jurisdiction only if the statute itself is valid.
Starts to sound a lot like the order of operations in Marbury, doesn’t it?
Comment by LegalThoughts — July 13, 2006 @ 3:20 pm
1L:
Roe is like Plyler v. Doe, no serious constitutional scholar defends these cases, except to point to the result and say that they should continue to be followed.
And yes, I am accusing the Supreme Court of not doing its duty.
With respect to jurisdiction, Congress has every right to do so. It’s funny how you’ll defend sorry decisions like Roe and Lawrence, but argue that a specific right granted to Congress in the constitution is not to be used.
Comment by federalist — July 13, 2006 @ 3:43 pm
Federalist,
I only defended them as logical outgrowths of Griswold. I think that a serious constitutional scholar might attack me for my reliance on Griswold, which is an admittedly weak decision. If one assumes that there is a constitutional right to privacy contained in the 1st, 3rd, 4th 5th, 9th or anywhere else, the one would think that that privacy would extend to things that go on in the bedroom or body. I made no assertion regarding the grand scheme of things; my only assertion was that judges who buy into the idea that there is a right to privacy in the constitution (which is something about which reasonable people may disagree) are acting conscientiously in their defense of Roe et al, and are not merely asserting their policy preferences.
My second point did not question what Congress may or may not do; even a worthless 1L such as myself must conceed that the Exceptions Clause exists. I merely said that it is not WISE to use it to render constitutional pronouncements ineffective for the above reasons.
Comment by Worthless1L — July 13, 2006 @ 4:56 pm
It seems to me that those cases are simply logical outgrowths of Griswold, and assuming that the Court accepts Griswold as good law, they are faithfully executing their responsibilities.
One could simply attack you for your misreading of Griswold. Griswold is founded on the marital privacy that inheres in the bedroom. It has nothing to do with the individual right to receive contraceptives in public, as does Eisenstadt, which is its non-sequitur progeny. Your reliance on Griswold is fine; but Roe is not a natural outgrowth of Griswold; neither is Lawrence. Roe and Lawrence descend from Eisenstadt, which came out of nowhere.
Comment by Commentator — July 13, 2006 @ 5:49 pm
Commentator,
Eisenstadt didn’t come out of thin air and is actually an expansion of Griswold. eg 404 US 348, 445 & 453 if you’d like to see Eisenstadt citing to Griswold or read the explicit expansion of Griswold.
Comment by Worthless1L — July 13, 2006 @ 6:17 pm
Eisenstadt didn’t come out of thin air and is actually an expansion of Griswold. eg 404 US 348, 445 & 453 if you’d like to see Eisenstadt citing to Griswold or read the explicit expansion of Griswold.
1. It is categorically impossible for me to have made the criticism of your argument I made without having carefully read both Griswold and Eisenstadt. Watch yourself.
2. The fact that Eisenstadt claims it is a necessary incident of Griswold does not prove that it is. I may say that my uncle is the Monkey King of Mars, that does not prove that I have an uncle. In fact, Griswold is based on marital privacy of the bedroom. That is not the rationale supporting Eisenstadt. Eisenstadt is a non-sequitur. Is it an expansion? Sure. BUT THAT WAS THE POINT: IT IS AN UNWARRANTED EXPANSION.
3. Citations are no substitute for reason and no cure for irrationality.
Comment by Commentator — July 14, 2006 @ 10:22 am
Commentator wrote:
1. It is categorically impossible for me to have made the criticism of your argument I made without having carefully read both Griswold and Eisenstadt. Watch yourself.
First of all, you shouldn’t tell people to watch themselves. It comes across as vaguely threatening.
Second of all, it is not at all “categorically impossible.” In fact, you needn’t have read the decisions at all, let alone carefully. You simply could have read an analysis saying basically what you say, and then repeated that analysis.
Commentator also wrote:
3. Citations are no substitute for reason and no cure for irrationality.
Neither is the bolding of text and use of all-capital sentences.
Comment by stephanrjohnson — July 14, 2006 @ 11:31 am
Not to defend Commentator, but I find it hard to believe that people would think a “watch yourself” would be threatening, even vaguely threatening.
Comment by federalist — July 14, 2006 @ 1:17 pm
It is categorically impossible for me
Here’s the thing. It is categorically impossible for me to have made the argument without having carefully read the opinions, because I have carefully read the opinions and I did so before I made the argument. So, watch yourself. And, I hope that my use of italics did not threaten you.
Comment by Commentator — July 14, 2006 @ 3:29 pm
Commentator,
My appologies, I misunderstood your previous comment, “[Eisenstadt] came out of nowhere.” I did not read that as a criticism of the logic of Eisenstadt, but rather as a factual statement. I did not mean to insult your intelligence, but rather correct a factual error (hence the citation rather than argument). I now offer argument.
I first must say that your argument is not without merit; if one is to very narrowly read Griswold to say that it “discovered” the right of married couples to use contraceptives within their bedrooms — or even that it created the right to privacy in the bedroom — then I must conceed that Eisenstadt is unreasonable. However, Douglas’s language in his analysis of the Fourth and Fifth Amendment’s “penumbras” suggests that he is actually finding a broader right to privacy. He states that the Fourth and Fifth Amendments constitute a “protection against all governmental invasions ‘of the sanctity of a man’s home and privacies of life.’”
Comment by Worthless1L — July 14, 2006 @ 8:47 pm
He states that the Fourth and Fifth Amendments constitute a “protection against all governmental invasions ‘of the sanctity of a man’s home and privacies of life.’”
I think you are overstretching dicta. But even if your stretching of dicta makes law, it still doesn’t bridge the gap between Griswold and Eisenstadt. A single individual receiving contraceptives in public has nothing to do with a married man using contraceptives in the privacy of his home with his wife. If your reading of Griswold is correct, then the mere fact that you can get it on in the privacy of your home without governmental intrusion means that public sex acts cannot be criminalized. Remind me not to take my kids to the park when you’re in town.
Comment by Commentator — July 17, 2006 @ 3:23 am
Commentator,
Your reading of the Massachusetts law which was stuck down in very textualist and ignores the legislative intent. I think that looking reading between the lines of the law one can see that they were trying to discourage the use of contraceptives (or at least discourage it among people too poor to buy condomns). That is where Griswold ties into Eisenstadt. The CT law and the MA law are after the same thing: keeping people from using contraceptives. I think that you are likely a bright enough person to figure out where this is going, so I’ll get to my second point.
What I was refering to above was not dicta, it was essential to the opinion; without that construction of the 4th and 5th, the fears of the invasion of the home required to enforce this law would fall completely outside of constitutional protection.
Comment by Worthless1L — July 18, 2006 @ 12:40 am
I think that looking reading between the lines of the law one can see that they were trying to discourage the use of contraceptives (or at least discourage it among people too poor to buy condomns).
I think if one looks to the actual history of the statute, one sees that there was no political majority to support it at the time it was struck down, nor had it been enforced recently. It was obsolete and no one’s rights were in danger. It was on the books in the same sense that laws against dancing or being upright after 7 p.m. are still on the books in states that have a Calvinist history; but there is no Calvinist majority with political clout, anywhere. So the question is not whether the statute should have been invalidated, but whether new rights should have been created when the statute was invalidated. I agree that the statute should have been struck down (and if the people really wanted it, they could go to the legislature and reenact it, which would not have happened, because turn-of-the-century Catholics had enacted the law and in the late 1960s the area was virtually all Protestant), but simply striking down the statute for desuetude would have been a judicially modest act. Creating newfangled rights was the problem. I’m not here to support contraceptive-banning statutes. Basically, no one is; no one was at the time of Griswold, either. That doesn’t mean one has an inalienable right to receive contraceptives in the public square. As for your “reading between the lines of the law” — that would be making up false history to support making up false constitutional rights. Talk about activism.
Comment by Commentator — July 18, 2006 @ 12:05 pm