Comments on: Today’s Opinions

By: Chee Foong Chew

Chee Foong Chew — Wed, 23 Jan 2008 16:58:29 +0000

Daniel,

Perhaps it has to do with its discussion on legislative history. I don’t have a problem with his first part where he discusses the scope of “any”, but am not sure I buy the legislative history bit. Here I feel myself echoing Scalia’s thought, how is anyone supposed to know how a law was passed? Even if we did, how do we weight different congressmen/senators’ view on what they thought the law should encompass?

By: Daniel Thomas

Daniel Thomas — Wed, 23 Jan 2008 16:14:36 +0000

I am puzzled why people think that Stevens and Bryer’s dissent was “grandiose” and “queasy”. Cases like this make me toss up my hands because I don’t think it possible to find any logical or rational basis for taking one position over the other. A “textual” reading might be narrower than a “contextual” reading but both are reasonable and rational approaches to construction. In my observation, most justices simply make a judgement about the case based upon their political values and then find some legal theory that makes their position plasuable. The majoirty opinion, in this sense, is just as grandiose and queasy as the dissent.

By: Andrew Oh-Willeke

Andrew Oh-Willeke — Tue, 22 Jan 2008 23:39:03 +0000

Why wasn’t this case a constitutional takings clause claim under the 5th Amendment against the United States, rather than a negligence claim against the guards? The United States can’t give itself immunity to violations of the United States Constitution.

While incarceration comes with many disabilities, forfeiture of property rights not identified for seizure in a mittimus or civil judgment is not normally among them. Is the problem that the Plaintiff can’t prove that the government actually received the missing property since their whereabouts are unknown?

By: James N. Markels

James N. Markels — Tue, 22 Jan 2008 22:01:34 +0000

I wonder how this decision portends the way the Justices will vote on the Heller case. Originally I thought that Justice Ginsburg would vote for the collective-rights view, but her willingness to join the textualist reading of the statute in this case implies that she is more likely to read the 2nd Amendment to support an individual right. On the other hand, while Justice Kennedy penned the dissent, he was careful to note that the majority’s position was not without merit — an attempt to cover himself should he switch tracks to uphold the plain meaning of the 2nd Amendment.

Meanwhile, Justices Breyer and Stevens struck out into very queasy territory in their efforts to reinterpret things. While before I predicted that the vote would be 7-2 in favor of the individual-rights view with Justices Stevens and Ginsburg in dissent, now I think it will be Justices Stevens and Breyer in dissent.

We’ll see.

By: Evan Slavitt

Evan Slavitt — Tue, 22 Jan 2008 19:17:37 +0000

With respect to #2 above, it seems that sometimes the justices just lose interest in last minute tweaking. Thus, it is possible that Justice Breyer decided to dissent separately late in the process and that was not addressed. I seem to recall that there is at least one case in which Justice Douglas originally was drafting the majority opinion. When a vote switched and his opinion became a dissent, he didn’t bother to go through to change it to conform, but just published it as is.

By: Stephen Jaros

Stephen Jaros — Tue, 22 Jan 2008 18:59:57 +0000

The opinions are interesting because they read like English professors debating how to interpret language structures.

Perhaps we should turn over statutory interpretation to English professors?

By: Andy Grewal

Andy Grewal — Tue, 22 Jan 2008 18:50:52 +0000

I thought it was somewhat odd that the majority opinion acts like there is only one dissenting opinion, even going so far as to refer to Kennedy’s opinion as “the dissent.” see p.8, n.5.

I understand that majority opinions frequently fail to address the views of dissenting justices, but it seems like the majority thought that Breyer’s dissent was viewed as too silly to even respond to (much less acknowledge).

That being said, perhaps this is typical practice; I can’t say I’ve really paid close attention to the manner in which majority opinions acknowledge (or fail to acknowledge) dissenting opinions, but, given Breyer’s grandiose statements in his dissent, I thought it somewhat unusual/amusing that his opinion was not acknowledged (”grandiose,” anyway, in the context of a debate regarding statutory interpretation).

By: Kurt Van Thomme

Kurt Van Thomme — Tue, 22 Jan 2008 16:00:34 +0000

Justice Kennedy broke his streak; he’s wrote the dissent in a 5-4 decision.