Closing Thought on the October, 2012 Term

Linda Greenhouse points out the worst aspect of John Roberts as Chief Justice: his patient, careful legal nihilism, which bends precedent, distorts history, and ultimately draws all power unto himself:

If there is no mystery about the nature of the chief justice’s views, I remain baffled by their origin. Clearly, he doesn’t trust Congress; in describing conservative judges, that’s like observing that the sun rises in the east. But oddly for someone who earned his early stripes in the Justice Department and White House Counsel’s Office, he doesn’t like the executive branch any better.

He made this clear in an opinion dissenting from a 6-to-3 decision this term in an administrative law case, City of Arlington v. Federal Communications Commission. The question was whether, when the underlying statute is ambiguous, courts should defer to an administrative agency’s interpretation of its own jurisdiction. The answer was clearly yes, according to Justice Scalia’s majority opinion that built on decades of precedent on judicial deference to agencies. The chief justice’s dissenting opinion was a discordant screed that bemoaned the modern administrative state with its “hundreds of federal agencies poking into every nook and cranny of daily life.”

Congress can’t be trusted. The executive branch is out of control. What’s left?

The Supreme Court.

Um, I hadn't realized that Eric Roberts was appearing in a biopic back in 1996. Wrong robe, of course, but it's the little things...

Doing a Little Justice

Years ago, when I was an appellate attorney at Legal Aid, if one of the more senior attorneys saw us heading out to an oral argument, he would wish us well, saying "Go do a little justice!" That remark seems apt today, as the Supreme Court, at the end of a term where it wreaked some pretty significant injustice, lived up to my old colleague's admonition.

In United States v. Windsor, the Court struck that abomination of the 1990s, the "Defense of Marriage Act" as unconstitutional in an opinion by Justice Kennedy. The Court explained its ruling:

Against this background DOMA rejects the long-established precept that the incidents, benefits, and obligations of marriage are uniform for all married couples within each State, though they may vary, subject to constitutional guarantees, from one State to the next. Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance. The State’s power in defining the marital relation is of central relevance in this case quite apart from principles of federalism. Here the State’s decision to give this class of persons the right to marry conferred upon them a dignity and status of immense import. When the State used its historic and essential authority to define the marital relation in this way, its role and its power in making the decision enhanced the recognition, dignity, and protection of the class in their own community. DOMA, because of its reach and extent, departs from this history and tra- dition of reliance on state law to define marriage. “ ‘[D]is-criminations of an unusual character especially sug- gest careful consideration to determine whether they are obnoxious to the constitutional provision.’ ” Romer v. Evans, 517 U. S. 620, 633 (1996) (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U. S. 32–38 (1928)).

The Federal Government uses this state-defined class for the opposite purpose—to impose restrictions and dis- abilities. That result requires this Court now to address whether the resulting injury and indignity is a deprivation of an essential part of the liberty protected by the Fifth Amendment. What the State of New York treats as alike the federal law deems unlike by a law designed to injure the same class the State seeks to protect.
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DOMA seeks to injure the very class New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U. S. Const., Amdt. 5; Bolling v. Sharpe, 347 U. S. 497 (1954) . The Constitution’s guarantee of equality “must at the very least mean that a bare con- gressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group. Depart- ment of Agriculture v. Moreno, 413 U. S. 528–535 (1973). In determining whether a law is motived by an improper animus or purpose, “ ‘[d]iscriminations of an un- usual character’ ” especially require careful considera- tion. Supra, at 19 (quoting Romer, supra, at 633). DOMA cannot survive under these principles. The responsibility of the States for the regulation of domestic relations is an important indicator of the substantial societal impact the State’s classifications have in the daily lives and customs of its people. DOMA’s unusual deviation from the usual tradition of recognizing and accepting state definitions of marriage here operates to deprive same-sex couples of the benefits and responsibilities that come with the federal recognition of their marriages. This is strong evidence of a law having the purpose and effect of disapproval of that class. The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.
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The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA instructs all federal officials, and indeed all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others. The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment. This opinion and its holding are confined to those lawful marriages.

I am delighted to see this repudiation of unequal treatment under the law. Period.

Perhaps it's ignoble, but after his joining yesterday's farcical opinion striking down a statute explicitly authorized to be enacted by the 15th Amendment, I found Justice Scalia's strident paean to the virtues of judicial restraint to be both hypocritical and laughable. His belated effort to strike a tone of neutrality ("But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better") are utterly lacking in credibility after his prior culture war statements in the very same opinion.

So too am I glad to see that the nosiome Proposition 8 buried; although I would have preferred a merits ruling, I really expected at best the standing decision we in fact got. At least this leaves the very strong District Court opinion as the last word.

After a term of mostly disappointments, at least the closing day ended by doing a little justice. And about time, too.

Greymalkin

The above-pictured cat, who I named Greymalkin about 4 or 5 years ago, was a feral cat in our neighborhood who found us when La Caterina and I moved into an apartment together in Long Island City.

Except he had no interest in being a feral cat. He was quite sure that he belonged inside, and complained quite persistently at our failure to perceive this. If I opened the door on a weekend morning to get the paper, odds were that Greymalkin would shoot into the shared vestibule, and demand food and attention, and, ultimately, entry into our home. We never let him in, but we got him fixed, fed him, and, over time, learned to pet and snuggle him. Like some feral cats, Greymalkin never really was truly feral; he was a housecat at heart.

He became a housecat when we took him with us to our current home, and he thrived. But he had FIV, and the other cats had to be kep away from him, and, most reluctantly, we found him a new home with a good friend of mine. That was three years ago.

Greymalkin had to be put to sleep today. I got the call this afternoon from my friend, who has been great to him over the past three years. When we visited, we saw how bonded they were, and how affectionate he was with her. He recognized us, though, and let pet him and me croon into his ear, like I did when he lived with us. When my friend called from the ASPCA, the vet hd left her alone with him for a few minutes. AFter updating me, she put the phone near him, and let me say goodbye to my friend.

I'm glad he was in my life, and glad that he found a loving home. I'm glad that he died loved and with his person. And that I got to say goodbye.

The Perils of Shelby

Back in the early 1980s, a young John Roberts, working in the Reagan Administration, unsuccessfully battled to narrow the Voting Rights Act. Today he succeeded in gutting a section of the VRA that was instrumental in thwarting voter suppression in the 2012 elections.

It is very difficult to overstate the enormity of today's decision in Shelby County v. Holder, as the Court both deforms the substance of constitutional law and the methodology of judicial review. In it, the Supreme Court struck down Section 4 of the Voting Rights Act, a statute most recently reauthorized in 2006, and enthusiastically signed by former President George W. Bush. The Voting Rights Act is an exercise of Congress's power under the Fifteenth Amendment, which provides that "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude." The Amendment further provides that "The Congress shall have power to enforce this article by appropriate legislation."

Note that. The Congress, not the Court, nor the Executive, is constitutionally afforded remedial power. The fashioning of the remedy and the judgment of the need for a remedy is entrusted to the popularly elected branch. Similar constitutional provisions entrusting the passage of "appropriate" legislation to Congress, such as the Necessary and Proper Clause (which imposes a second qualification on the exercise of the power, that it be "necessary"), have been entitled to deferential review by the Court. Even in National Federation of Independent Businesses v. Sebelius (2012),in which the Court narrowed the New Deal understanding of the Commerce Clause, the Court acknowledged that:

The reach of the Federal Government’s enumerated powers is broader still because the Constitution authorizes Congress to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” Art. I, §8, cl. 18. We have long read this provision to give Congress great latitude in exercising its powers: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” McCulloch, 4 Wheat., at 421.[1819]

However, the Court was not so deferential in reading "appropriate" under the Fifteenth Amendment today:

More specifically, “ ‘the Framers of the Constitution intended the States to keep for themselves, as provided in the Tenth Amendment, the power to regulate elections.’ ” Gregory v. Ashcroft, 501 U. S. 452–462 (1991) (quoting Sugarman v. Dougall, 413 U. S. 634, 647 (1973) ; some internal quotation marks omitted). Of course, the Federal Government retains significant control over federal elections.
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Not only do States retain sovereignty under the Constitution, there is also a “fundamental principle of equal sovereignty” among the States. Northwest Austin, supra, at 203 (citing United States v. Louisiana, 363 U. S. 1, 16 (1960) ; Lessee of Pollard v. Hagan, 3 How. 212, 223 (1845); and Texas v. White, 7 Wall. 700, 725–726 (1869); emphasis added). Over a hundred years ago, this Court explained that our Nation “was and is a union of States, equal in power, dignity and authority.” Coyle v. Smith, 221 U. S. 559, 567 (1911) . Indeed, “the constitutional equality of the States is essential to the harmonious operation of the scheme upon which the Republic was organized.” Id., at 580

The trick move here is to assume that the Fifteenth Amendment--a post-Civil War Amendment--does not effect or limit the Tenth Amendment, and that the two must be harmonized by a less deferential level of judicial review of legislation enacted under the Fifteenth Amendment. Chief Justice Roberts purports, through selective quotation, to derive this analysis from South Carolina v. Katzenbach (1966), which first upheld the exact same section of the Voting Rights Act struck down today, but in fact, that decision found that:

The basic test to be applied in a case involving § 2 of the Fifteenth Amendment is the same as in all cases concerning the express powers of Congress with relation to the reserved powers of the States. Chief Justice Marshall laid down the classic formulation, 50 years before the Fifteenth Amendment was ratified:

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

McCulloch v. Maryland, 4 Wheat. 316, 421. The Court has subsequently echoed his language in describing each of the Civil War Amendments:

Whatever legislation is appropriate, that is, adapted to carry out the objects the amendments have in view, whatever tends to enforce submission to the prohibitions they contain, and to secure to all persons the enjoyment of perfect equality of civil rights and the equal protection of the laws against State denial or invasion, if not prohibited, is brought within the domain of congressional power.

So, in fact, the suggestion on the part of the majority today that Section 4 of the Voting Rights Act "represents an extraordinary departure from the traditional course of relations between the States and the Federal Government,” and constitutes “extraordinary legislation otherwise unfamiliar to our federal system," and thus requires a heightened showing by Congress to justify it is a novelty; although its quotations are from other decisions, they did not create a new heightened threshold that Congress must establish. Indeed, in a system where the remedial power is expressly entrusted to the legislature not the courts or the Executive, such a heightened showing would subvert not just the extensive precedent from the enactment of the Amendment to the present, especially that from 1966 to today, it would subvert the respect Congress is owed as a coordinate branch.

So of course they did just that.

After diluting the deference due Congress, the Court than cites two factors leading it to conclude that the provisions of § 4 are no longer 'appropriate":

Coverage today is based on decades-old data and eradicated practices. The formula captures States by reference to literacy tests and low voter registration and turnout in the 1960s and early 1970s. But such tests have been banned nationwide for over 40 years. §6, 84Stat. 315; §102, 89Stat. 400. And voter registration and turnout numbers in the covered States have risen dramatically in the years since. H. R. Rep. No. 109–478, at 12. Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. See, e.g., Katzenbach, supra, at 313, 329–330. There is no longer such a disparity.

As to the evidence of continuing abuses complied by Congress, the Court merely writes:

Congress compiled thousands of pages of evidence before reauthorizing the Voting Rights Act. The court below and the parties have debated what that record shows—they have gone back and forth about whether to compare covered to noncovered jurisdictions as blocks, how to disaggregate the data State by State, how to weigh §2 cases as evidence of ongoing discrimination, and whether to consider evidence not before Congress, among other issues. Compare, e.g., 679 F. 3d, at 873–883 (case below), with id., at 889–902 (Williams, J., dissenting).
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The dissent relies on “second-generation barriers,” which are not impediments to the casting of ballots, but rather electoral arrangements that affect the weight of minority votes. That does not cure the problem. Viewing the preclearance requirements as targeting such efforts simply highlights the irrationality of continued reliance on the §4 coverage formula, which is based on voting tests and access to the ballot, not vote dilution. We cannot pretend that we are reviewing an updated statute, or try our hand at updating the statute ourselves, based on the new record compiled by Congress. Contrary to the dissent’s contention, see post, at 23, we are not ignoring the record; we are simply recognizing that it played no role in shaping the statutory formula before us today.

In other words, (1) if the evidence is, to the Court, ambiguous, federalism must prevail, despite the express terms of the Fifteenth Amendment; and (2) the data cannot justify retaining the previous statutory formula, because it was not used in creating the formula. Why not, if, as the dissent shows at stinging length, it does--um. because. Yes, that's why. because.

As to the Court's contention (excerpted from the last quote) that "no one can fairly say that it shows anything approaching the “pervasive,” “flagrant,” “widespread,” and “rampant” discrimination that faced Congress in 1965, and that clearly distinguished the covered jurisdictions from the rest of the Nation at that time," Justice Ginsberg compiles substantial data to the contrary, by the quaint old art of reading the record, and notes that the fact that the discrimination changes its form to seem neutral and hopefully pass constitutional muster, as the Court in Katzenbach found to be the case in 1966.

In 2013, though, that's a feature, not a bug.

All I can add is read the dissent by Justice Ginsburg. It's worth your time.

"True Threat" and Undirected Advocacy: Policing the Fine Line

The Second Circuit Court of Appeals has affirmed the conviction of right wing blogger Hal Turner of threatening to assault or murder Circuit Judges Frank Easterbrook, William Bauer and Richard Posner, with intent to impede, intimidate or interfere with them in the exercise of their duties, or to retaliate against their exercise of their duties. As the facts are summarized at Law.com:

Turner began running the Hal Turner Show on a website in 2000 that was popular with groups such as the Klu Klux Klan and Aryan Nations. Between 2003 and 2007, he also helped the FBI by providing information on extremists who visited his web site and proposed acts of violence. The FBI dropped him in 2007 after he was admonished for his own violent speech on the website and his agent handler came to believe there were "serious control problems" with Turner, according to the circuit's opinion.

Turner published a blog post on June 2, 2009 following the Seventh Circuit 's decision in National Rifle Association of America v. Chicago, 567 F.3d 856 (7th Cir. 2009).

"Let me be the first to say this plainly: These judges deserve to be killed. Their blood will replenish the tree of liberty. A small price to assure freedom for millions," he wrote.
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Writing for the majority, Livingston said the evidence showed that "Turner's statements were not 'political hyperbole,' as he contended, but violent threats against the judges' lives."

In his blog post, Livingston said, "Turner not only wrote that these three judges should be killed, but also explained how Judge Lefkow had ruled against Matt Hale and how, '[s]hortly thereafter, a gunman entered the home of that lower court Judge and slaughtered the Judge's mother and husband. Apparently the 7th Circuit court didn't get the hint after those killings. It appears another lesson is needed.'"

Livingston said, "Such serious references to actual acts of violence carried out in apparent retribution for a judge's decision would clearly allow a reasonable juror to conclude Turner's statements were a true threat."

Turner had claimed he used "the passive voice"—an argument rejected by the circuit, as Livingston said he "did not merely advocate law violation or express an abstract desire for the deaths" of the three judges, but published their photos and directions on how to find them.

Now, as I wrote back at the time of the conviction, the provision of specific data that would facilitate an assassination attempt complicates the case, but I think that the dissent by Judge Rosemary Pooler has it right; this is an example of what used to be called incitement, and not, as the majority would have it, a true threat that Turner himself would carry out or directly cause to be carried out.

In other words, it has one major step between the advocacy of violence and its execution: Turner had to actually persuade some person in his general audience to act on his ravings. There is no reason in the record to believe that Turner had any specific audience member in mind, or any reason to believe his listeners would act on his suggestion. so this presents a case of what I have called "undirected advocacy", that is, advocacy of illegal conduct that is directed to a specific target but "the real life context of time and place are missing entirely, which renders the applicability of the advice or advocacy less tangible." The listener has time to review the arguments and weigh them, and reach an independent evaluation of whether to act on the advocacy at his or her own leisure, not being swept up in a specific, quick-moving situation. I just don't see this as a true threat, but rather advocacy of unlawful conduct--and thus protected by the First Amendment.

The Sermon Heard Round the World

So since everybody else seems to be grabbing a piece of the story, here's my reaction to Presiding Bishop Katharine Jefferts Schori's now infamous sermon delivered in Curacao last month. The part of the sermon that drew the ire of many was this:

We live with the continuing tension between holier impulses that encourage us to see the image of God in all human beings and the reality that some of us choose not to see that glimpse of the divine, and instead use other people as means to an end. We’re seeing something similar right now in the changing attitudes and laws about same-sex relationships, as many people come to recognize that different is not the same thing as wrong. For many people, it can be difficult to see God at work in the world around us, particularly if God is doing something unexpected.

There are some remarkable examples of that kind of blindness in the readings we heard this morning, and slavery is wrapped up in a lot of it. Paul is annoyed at the slave girl who keeps pursuing him, telling the world that he and his companions are slaves of God. She is quite right. She’s telling the same truth Paul and others claim for themselves. But Paul is annoyed, perhaps for being put in his place, and he responds by depriving her of her gift of spiritual awareness. Paul can’t abide something he won’t see as beautiful or holy, so he tries to destroy it. It gets him thrown in prison. That’s pretty much where he’s put himself by his own refusal to recognize that she, too, shares in God’s nature, just as much as he does – maybe more so! The amazing thing is that during that long night in jail he remembers that he might find God there – so he and his cellmates spend the night praying and singing hymns.

An earthquake opens the doors and sets them free, and now Paul and his friends most definitely discern the presence of God. The jailer doesn’t – he thinks his end is at hand. This time, Paul remembers who he is and that all his neighbors are reflections of God, and he reaches out to his frightened captor. This time Paul acts with compassion rather than annoyance, and as a result the company of Jesus’ friends expands to include a whole new household. It makes me wonder what would have happened to that slave girl if Paul had seen the spirit of God in her.

Now, I've given a little more of the sermon than is provoking most of the hostile commentary, because I think the context shows that the PB was trying to do something a bit more nuanced than her detractors are giving credit for--Paul is, in her telling, responding in an unworthy way to the slave girl, and then getting it right with the jailer, by reacting with compassion to the jailer. To be fair, that's a very Pauline inconsistency--think of Paul's strictures on women in 1 Timothy 2:12, and then what Kirster Stendahl has called his breakthrough moment in Galatians 3: "There is neither Jew nor Greek, there is neither bond nor free, there is neither male nor female: for ye are all one in Christ Jesus." As Stendahl has said:

St. Paul—I like him, but he was arrogant. He had a lot of human flaws, but he was great. He was a great, great theologian. A theologian is someone who sees problems where no one else sees problems, and sees no problems where other people see problems. Once, when he is speaking (1 Cor. 7)—it happens to be about family matters, divorce, and sex, and things of that kind—he says: On so-and-so, I have a word from the Lord, but then on so-and-so, I have no word from the Lord. I think he was the last preacher in Christendom who had the guts to say that. New situations come, really new situations. What shall we then do? And Paul says: I have no word from the Lord, but I'll give you my advice. I'm doing as well as I can. And I think I am right. . . . That's a wonderful insight. What a lovely Bible that tells us that sometimes we might need to think, and not just to think that it is all settled.

After all, Paul included himself in the great line, "or now we see through a glass, darkly; but then face to face: now I know in part; but then shall I know even as also I am known." And, of course, as the PB notes, the slave girl is telling the truth--she accurately says of Paul and his companions that "“These men are slaves of the Most High God, who proclaim to you a way of salvation.” So the PB's suggestion that Paul first reacts in a censorious, self-righteous way--well, there's a case for it, right? It's supported by the text, consistent with his behavior on other occasions--so, possible, right?

Yet my first reaction was to reject her hypothesis. Not because I believe that Paul can do no wrong, but because of what he does--he "said to the spirit, 'I order you in the name of Jesus Christ to come out of her.' And it came out that very hour." Now, I have a very hard time believing that in the New Testament, God, answering a prayer in the name of Jesus, would wreak an injustice, and, in the Presiding Bishop's words, "destroy" something "beautiful and holy" because Paul does not see its value. That would make Paul exercising not prayer but magic--the power of God would be entrusted to him for bad use as well as good. And I do not believe that that is how God works.

By the way, you don't have to believe in miracles, spirits of divination, or demons to accept this criticism of the Presiding Bishop's reading of the story; we are talking about the internal logic of the universe of the story, meaning certainly Acts itself and its prequel, the Gospel According to Luke. Even if you do not believe in the supernatural facets of the Bible in any kind of historical way, the fact is, the Presiding Bishop's reading of the story in in profound tension with the in-universe logic of the story as given in the text. So that's a problem.

And, originally, that's where I was going to end this post--the PB has, without any ill intent, I am sure, made an interpretation of a passage that conflicts with the passage's own internal logic and with authorial intent. And I think that's largely true still.

But noodling around with it this evening, I've realized that I'm less certain than I'd like to be, and that Bishop Katharine has more of a point than I'd like to admit. After all, what does become of the poor slave girl? Why was Paul "annoyed" (The King James Version has "grieved", which doesn't ameliorate Paul's response terribly)? The text does not suggest that Paul has much more--in fact, any more--concern or compassion for the slave girl than do her owners, does it? Even if he is liberating her from a spirit that is harming her spiritually, it's in a pretty grudging way.

My point of resistance remains that this doesn't explain God's part in it. Although Acts does contain what Bernard Shaw called "the vindictive miracles", it's hard to view the author as including a harmless woman speaking the truth about the Way as worthy of punishment, and thus depicting God giving Paul the power to destroy that which was beautiful and holy. (May I digress for a second, and add that the linked Shaw essay--the Preface to Androcles and the Lion--has some first rate thinking about the New Testament?) So I do believe that the PB's reading of the story ultimately doesn't work. But it's a great deal of a closer call than I thought just a few hours ago.

So, for what it's worth, I believe the Presiding Bishop pushed her insight--Paul is grudging; even if he's curing the slave girl, and not taking away her gift, he's doing the right deed for a pretty dubious reason. But destroying what is holy? That seems to push the insight further than it can go without making God himself guilty of injustice.

And further than the PB needs to go--or possibly intended to go--in making her point.

Secular Law and Christian Influence: A Partial Response to David McIlroy

David McIlroy has an article, "Is Secular Law Possible", over at Theos which is both thought-provoking and frustrating. It's thought provoking in that it tackles a truly important topic--that is, to what extent, if any, must law, to work justice, be influenced by religious belief and thought--and concludes that while what he terms "secularist" law is impossible, a "secular" law, one "which is influenced by Christianity’s teachings, its teachings about the dignity of human beings, the inevitability of the Last Judgment, and the limited nature of government, is imperative."

That's a big proposition, and one which, frankly, requires a careful, nuanced defense. And while McIlroy makes some good points along the way, he ultimately rests his analysis on three unproven (and rather large themselves) assumptions: First, that secular liberal legal theory must be devoid of moral content, which he bases on John Rawls's "original position" in A Theory of Justice. Second, McIlroy deplores the failures of classical thinking on political morality while ignoring the, shall we say, highly spotty record of Christianity on the same issues. Finally, McIlroy, while quite properly asserting that either a theocratic or secularist (his term) state, if not limited would tend toward tyranny, asserts that Christianity has embedded within it a receptivity to such limitations that secular thinking lacks.

While welcoming McIlroy's raising such an important question, I don't believe these foundations of his argument bear scrutiny.

1. McIlroy on Liberal Proceduralism

As McIlroy writes:

The difficulty is that, although secularist law is a possibility, neutral secular law is an illusion, an impossibility. The most powerful philosophical vision of justice which the twentieth century produced was that of John Rawls. Rawls, in his Theory of Justice, taps into a line of Enlightenment thought running from John Locke to Immanuel Kant. He asks us to imagine an original position, in which people do not know whether they believe in God or not, whether they are rich or poor, educated or illiterate, talented or feckless, black or white, married or single. Rawls poses the question: what the principles of justice would people behind such a veil of ignorance agree on? A major part of his answer is that people would agree on a system which maximises the situation of the worst off in society.
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Secular liberalism slips from treating people with equal regard (impartiality between different persons) to purported neutrality between different moralities (which translates as indifference to moral questions). Yet law can never been blind to moral distinctions.

McIlroy quotes Costa Douzanis:"In the absence of any widely shared vision of the good life, liberalism relies on formal procedures: on positive law and general criteria of distribution. Law excludes considerations of value from its domain and limits the quest for, or the application of, any substantive criteria of justice."

Now, let me acknowledge that this critique of liberalism has long been made, and is not entirely without salience. I would cavil at applying it solely to liberalism, however; it's pretty well established that in the common law system--thus, the entirely of Anglo-American jurisprudence--for over a century, it has been a commonplace that substantive legal reform has been accomplished through procedural reform since the Middle Ages. That approach has continued into the modern era, culminating (in the US) in the 1938 adoption of the Federal Rules of Civil Procedure. Since then, in the United States the contours of legal rights have continued to have been defined through the often admittedly oxymoronic process of "substantive due process" review by the United States Supreme Court.

So in laying at "liberalism's" door a process of legal reform through procedural evolution that dates back to the reign of Henry II (1154-1189), McIlroy seems to be loading the dice. Still, it is true that some liberal thinkers think exclusively, or almost so, in terms of procedure in terms of law and its content, and that critique is worth noting.

That said, I think that applying it to Rawls this unfair; his "original position" is a thought experiment designed to give teeth to the Golden Rule, a precept deeply embedded within Christianity, but also one that antedates it by at least 700 years in Greek, Chinese, Egyptian, and Indian thought. Rawls's thought experiment does so by placing each voter of having to in fact risk being on the "losing" end of the political spectrum, rather than able to be able to assume that he or she would be at the more privileged end. In other words, rather than trust to the benevolence of the voter, Rawls tries to make the imperative of the Golden Rule truly imperative, and not dependent on the condescension of the elite to the lower classes.

As a side note, I think McIlroy needs more than a citation to Lochner v. New York (1905) to establish that secular neutrality is impossible. Just because a rule has not been applied in a given case doesn't mean it is not susceptible to being followed; that's especially salient with respect to Lochner, a case that is so accepted as being wrongly decided that the academic debate is only over whether it was "wrong the day it was decided" or simply eroded by time revealing the flaws of the underlying reasoning in modern circumstances.

2. Classical Thought and Christianity

McIlroy quite properly recounts how "[w]e react with shock when we discover that Aristotle, the Philosopher, believed that slavery was natural, that some people were fit to be no more than living tools for others." (Emphasis in original.) However, McIlroy does not acknowledge the influence of this teaching in Christianity. Indeed, he cites Thomas Aquinas for other purposes in his article without noting that Aquinas accepts, albeit while softening a little, Aristotle's teaching on slavery.

Moreover, in arguing for his ideal of a Christianity-influenced law, he completely omits to mention that Christianity has a very checkered record with respect to slavery from the early church era to the mid-19th Century, especially in relation to the American Civil War:

[A]s the Episcopal Church in Virginia stated soon after the war began, Southerners were fighting “a Revolution, ecclesiastical as well as civil.” This would be a revolution that aimed to establish nothing less than, in the words of one Georgia woman, “the final and universal spread of Gospel civilization.”

This “Gospel civilization,” many believed, didn’t just permit slavery — it required it. Christians across the Confederacy were convinced that they were called not only to perpetuate slavery but also to “perfect” it. And they understood the Bible to provide clear moral guidelines on how to properly practice it. The Old Testament patriarchs owned slaves, Jewish law clearly assumed its permissibility and the Apostle Paul’s New Testament letters repeatedly compelled slaves to be obedient and loyal to their masters. Above all, as Southerners never tired of pointing out to their abolitionist foes, the Gospels fail to record any condemnation of the practice by Jesus Christ.

By not engaging with this checkered history, McIlroy is able to posit the Christian influence on law as a simple good, and proclaim that "t is the Christian understanding of what it means to be a human being, founded in the Incarnation, which has had a profoundly humane and humanised effect on Western culture." Well, yes. And no, too.

3. Christianity and the Two Perfect Sovereigns

Finally, McIlroy argues that Christianity has contributed "two insights – that human beings are made in the image of God and that there will be a Last Judgment – [that] have led to one of our civilization’s greatest discoveries, the idea of limited government." He contends that"Even during the period of Christendom, the thinkers of the Church taught that there was a distinction between secular government and religious authority, between the matters on which a person was answerable to the secular ruler, the matters on which the person was answerable to the institutional Church, and the matters on which the person was answerable to God alone." In so arguing McIlroy cites especially Aquinas, but others too.

McIlroy's claim is true, as far as it goes, but is presented in an aggressively optimistic way. The relationship between Church, State, and the individual was far more intertwined and mixed than that. Joseph Lecler's study The Two Sovereignties addresses some of the extent to which the Church in fact asserted the right to dominate secular governments, as does my own article "Command and Coercion", but to just give one classic example, two quotations from St Thomas Becket:

It is certain that kings receive their power from the Church and the Church not from them, but from Christ. . . . You have no power to give rules to bishops, nor to absolve or to excommunicate anyone to draw clerks before secular tribunals, to judge concerning breach of faith or oath, and many other things of this sort which are written among your customs which you call ancient. . . .
****
God wishes that the administration of ecclesiastical affairs should belong to his priests, not to secular rulers, who, if they are of the faith, he wishes to be subject to the priests of his Church.
. . . God Almighty has willed that the clergy of the Christian religion should be governed and judged, not according to public laws and by secular authorities, but by bishops and priests.
Christian kings ought to submit their administration to ecclesiastical prelates, not impose it on them . . . Christian princes should be obedient to the dictates of the Church, rather than prefer their own authority; princes should bow their head to bishops rather than judge them . . .

And, of course, it was only in 1965 that the Roman Catholic Church abandoned "its earlier opposition to liberal democracy" as a legitimate form of government. Even today, there are Christian theocrats and, less absolutely, those who seek to bend the State to enforcement of Christian doctrine as they see it.

None of this is to deny that Christianity in the West has made great contributions to the political evolution of our political order. Rather, McIlroy presents an artificially tidy schematic to justify his thesis, which leaves out the contributions of those who have reacted to the excessive demands of the Church (Catholic and Protestant alike) for political power and influence, and omits entirely the shadow side of Christian influence in politics. It's a pity, because a profound discussion should be had on these issues.

(Edited to restore omitted link.)

Everybody Knows...

Everybody knows the fight was fixed
The poor stay poor, the rich get rich
That's how it goes
Everybody knows

Today's majority opinion in American Express Co. v. Italian Colors Restaurant is written by by Justice Scalia for a 5-3 majority (Justice Sotomayor recused herself). It is the usual story for the Roberts Court--creating a right on the part of big business to shape the playing field so that even a viable claim of a violation of federal law becomes immunized as a practical matter, because of an onerous arbitration agreement's provisions--imposed through the very monopoly power the Sherman Antitrust Act was designed to prohibit--that forbid all fora but arbitration, but set ground rules for arbitration that make the cost of litigation far more than the possible recovery by banning shared expenses among plaintiffs.

Or, as Justice Kagan put it in her persuasive dissent:

The Court today mistakes what this case is about. To a hammer, everything looks like a nail. And to a Court bent on diminishing the usefulness of Rule 23, everything looks like a class action, ready to be dismantled. So the Court does not consider that Amex’s agreement bars not justclass actions, but "other forms of cost-sharing . . . that could provide effective vindication." Ante, at 7, n. 4. In short, the Court does not consider—and does not decide— Italian Colors’s (and similarly situated litigants’) actual argument about why the effective-vindication rule precludes this agreement’s enforcement.

As a result, Amex’s contract will succeed in depriving Italian Colors of any effective opportunity to challenge monopolistic conduct allegedly in violation of the Sherman Act. The FAA, the majority says, so requires. Do not be fooled. Only the Court so requires; the FAA was never meant to produce this outcome. The FAA conceived of arbitration as a "method of resolving disputes"—a way of using tailored and streamlined procedures to facilitate redress of injuries. Rodriguez de Quijas, 490 U. S., at 481 (emphasis added). In the hands of today’s majority, arbitration threatens to become more nearly the opposite—a mechanism easily made to block the vindication of meritorious federal claims and insulate wrongdoers from liability. The Court thus undermines the FAA no less than it does the Sherman Act and other federal statutes providingrights of action. I respectfully dissent.

(Opinion of Kagan, J., dissenting at 14-15.)

Justice Kagan's dissent is remarkable for both its plainspokenness--it's rare for a dissenter to question not just the majority's reasoning but its intentions and the integrity underlying the ruling--and her casual use of arresting language throughout the opinion. Elena Kagan is turning Scalia's own weapons on him. Her caustic wit, vivid writing, and eye for shoddy legal construction are a match for his own, and she has, in this instance, the added advantage of being right on the law.

Santo Subito?

From the New York Daily News:

John Paul II is speeding along the fast track towards sainthood.
The late Pope has reportedly performed a second “extraordinary healing” that Vatican sources say will “amaze the world.” If this miracle is approved by the church, John Paul could catapult to sainthood faster than anyone else in recent history.

The Holy See hasn’t officially released details about the miracle, but insiders say it involves the healing of a Costa Rican woman who was suffering from a severe brain injury. She was allegedly cured after her family prayed to the Pope’s memory, The Telegraph reports.
The Catholic Church launched an investigation into the incident. Doctors testified that the healing couldn’t be explained away by science.

A commission of theologians has already approved the miracle, a Vatican official confirmed. The case will now be handed over to a commission of cardinals and then to Pope Francis.
John Paul could be canonized as early as October, just in time for the 35th anniversary of his election. If all goes well, sources say an announcement could be made as early as July — just eight years after his death in 2005.

I really do hate to always be caviling, and as an ex-catholic, it probably ill becomes me to point this out, but it's a little concerning to me that John Paul II is rocketing to sainthood despite his record of, at best, willful blindness in the Catholic Church sex abuse crisis. It goes all te way to the beginning, too; in a 1993 letter to the Bishops of the United States of America, John Paul addressed the sex abuse crisis for the first time. The letter opens with an epigraph: “Woe to the world because of scandals!” The letter continues:

During these last months I have become aware of how much you, the Pastors of the Church in the United States, together with all the faithful, are suffering because of certain cases of scandal given by members of the clergy. During the ad Limina visits many times the conversation has turned to this problem of how the sins of clerics have shocked the moral sensibilities of many and become an occasion of sin for others. The Gospel word “woe” has a special meaning, especially when Christ applies it to cases of scandal, and first of all to the scandal “of the little ones” (Cf. ibid. 18:6). How severe are Christ’s words when he speaks of such scandal, how great must be that evil if “for him who gives scandal it would be better to have a great millstone hung around his neck and to be drowned in the depths of the sea” (cf. ibid.) . . . .
I would also draw your attention to another aspect of the whole question. While acknowledging the right to due freedom of information, one cannot acquiesce in treating moral evil as an occasion for sensationalism. Public opinion often feeds on sensationalism and the mass media play a particular role therein. In fact, the search for sensationalism leads to the loss of something which is essential to the morality of society. . . .
Therefore, the words of Christ about scandal apply also to all those persons and institutions, often anonymous, that through sensationalism in various ways open the door to evil in the conscience and behavior of vast sectors of society, especially among the young who are particularly vulnerable. “Woe to the world because of scandals!” Woe to societies where scandal becomes an everyday event.

The Pope spends two of the eight paragraphs of the letter addressing the sexual abuse itself—one pointing out the severity of the offense in terms of the Gospel and one praising the “vast majority” of bishops and priests —and noting “[t]hat is why I am deeply pained, like you,” at the applicability of Jesus’ condemnation to “some ministers of the altar,” which must pain His heart. At the end of the paragraph, he then adds that he shares the American bishops’ sorrow and concern, especially that for the victims. In the third paragraph, John Paul speaks of the need for reconciliation of those offending priests and endorses the employment of canonical penalties.

From there, the 1993 letter shifts to the harm threatened to the Church and society posed by sensationalism and by scandal arising from these offenses. Two paragraphs delineate this concern, and the America bishops are charged with the avoidance of scandal as a co-ordinate responsibility in addressing the crisis. Notably, the remainder of the letter lays more stress on the avoidance of scandal than on addressing abuse, and no discussion at all is afforded the question of duties to secular authority.

Additionally, the problem is posed as a purely American one, with no acknowledgment that the Church in other nations had similar issues, and that, in fact, similar complaints had been posed in other nations. That the Holy See had received multiple briefings over decades from the Church in Europe and Latin America has been compellingly documented by Jason Berry (focusing on the appalling protection extended by John Paul II to the Legionaries of Christ and its serial abuser leader Father Marcial Maciel Degollado) and Thomas D'Antonio (focusing on the abuse within the Catholic Church), as well as the indispensable trio of Thomas Doyle, A.W. Richard Sipe, and Patrick Wall.

It was the biggest challenge to the legitimacy and moral authority of the Catholic Church in centuries. There is no kind way to say this; John Paul booted it. Abjectly. I would be falsifying the historical record if I said anything less blunt. His papacy (1978-2005) encompassed, in America alone, two separate outbreaks--the original late 1980s wave and the late 1990s-2000s wave that culminated in the retirement and flight to the Vatican of Cardinal Bernard Law in 2002--where Law "was later given a role as archpriest at St. Mary Major Basilica in Rome." At no time did John Paul II offer anything but brief shows of sympathy to victims; he protected Degollado to the end of his life (to his credit, his successor Benedict XVI ended that disgrace); he never took decisive steps to impose accountability on the Church hierarchy for its role in covering up abuse throughout his papacy. Indeed, the Vatican often hindered the efforts of reformers to protect children and of bishops to laicize priests in his reign.

I don't mean to reduce John Paul II's life to this one issue. But sainthood would seem to me to be inappropriate in the case of a man who, whatever his merits, let his loyalty to the institutional Church, its reputation and its clergy, blind him to his duty to protect the children of God from the shepherds he himself and his deputies had put over them.

En Garde!

What with the Supreme Court eroding the Fifth Amendment today (Scalia's back to whittling away at the Bill of Rights this week), I don't feel like engaging in any detailed state-of-the-law reportage. (Though if I did, I would acknowledge that our stochastic Court occasionally gets it right, as in striking the Arizona "evidence of citizenship" law as adding new requirements to voting registration beyond those set forth by Congress in the National Voter Registration Act, which preempts contradictory state laws--a result that is clearly right as a matter of statutory interpretation and constitutional construction.)

No, sorry.

I'd rather play with swords. And here's a glimpse:



OK, OK, not as dramatic as this:



Still, the only sport I've ever enjoyed.

How to *Really* Succeed at an Internship...

Or, simply, sue.

So, some years ago, I had a trial in front of the United States District Judge William H. Pauley, who struck me as a consistently fair, if tough, judge.

These traits can be seen in his opinion in Glatt v. Fox Searchlight Pictures, in which he held that interns who "worked as paid employees work, providing an immediate advantage to their employer and performing low-level tasks not requiring specialized training," were "classified improperly as unpaid interns and are 'employees' covered by" the the Fair Labor Standards Act ("FLSA") as well as New York's labor laws. Judge Pauley's reasoning on these factors is instructive as to what constitutes employment and what an internship:

1. Primary Benefit: "Searchlight received the benefits of their unpaid work, which otherwise would have required paid employees. Even under Defendants' preferred test, the Defendants were the 'primary beneficiaries' of the relationship, not Glatt and Footman."

2. No Formal Training Program:

Undoubtedly, Glatt and Footman received some benefits from their internships, such as resume listings, job references, and an understanding ofhow a production office works.68 But those benefits were incidental to working in the office like any other employee and were not the result ofinternships intentionally structured to benefit them. Resume listings and job references result from any work relationship, paid or unpaid, and are not the academic or vocational training benefits envisioned by this factor.

3. Displacing Employees:

Glatt and Footman performed routine tasks that would otherwise have been performed by regular employees. In his first internship, Glatt obtained documents for personnel files, picked up paychecks for coworkers, tracked and reconciled purchase orders and invoices, and traveled to the set to get managers' signatures. His supervisor stated that "[i]fMr. Glatt had not performed this work, another member ofmy staffwould have been required to work longer hours to perform it, or we would have needed a paid production assistant or another intern to do it.

(H/T to Rebecca Greenfield's analysis of the opinion, the structure of which which I have adopted after reviewing the opinion myself).

Judge Pauley denied summary judgment against the plaintiffs, and certified that the matter was properly brought as a class action, appointing a class representative. In view of the small amount of individual damages, and the expenses of federal litigation, that makes these claims (for now, at any rate) economically viable. The case is one to watch, as all if the plaintiffs prevail and the appellate courts affirm, the way internships are administered will change for many companies.

The Kindness of Strangers

So, I was traveling today from Albany back home to Brooklyn.

The rain started coming down while I was up there, and had reached near-Biblical proportions by the time I was nearing Kingston, New York on the way home.



A perfect time (not) to blow a tire.

Seriously.

I pulled off the Thruway, and, with my unerring Pathfinder sense of direction, managed to get hopelessly lost. Spying a Stewarts sign, I pulled in, and stalking into the shop, got considerably wet in doing just that. The two young ladies behind the counter were cheery and let me use the phone (the total failure of my cell phone carrier up there is a byword in the town, apparently.) They also recommended the chili, while I waited. The man from AAA came in a flash (I hadn't even finished the chili), and, rather than put the spare on, he methodically fixed the tire (!).

So really, this is a shout out to the good people of Hurley, New York; the kind ladies at the Post Office, who traded rain jokes with me and threatened to spoil the season finale of Game of Thrones if I didn't promise to watch it; Joe from Paramount Garage & Transmission, and the anonymous customer at Stewarts who started paging for info from the local Yellow Pages to help me out on a blustery day.

And, of course, my friends at Stewarts, who make good chili. Very good chili, as a matter of fact.

They all earned my thanks for getting me back on the road, but even more so for turning what could have been a major derailment of my day into something that I'll always remember with a smile.

My only regret is that I didn't follow the chili up with some Adirondack Bear Paw Ice Cream. Really, what was I thinking?

A Sprig of Basil.

I hate to be ungracious about it, but in the real world, Rathbone'd have Flynn's guts for garters.



Besides, could Flynn do this?



(Oh, how they loved their musical numbers in the 1930s!)

The Windmills of the Academic Mind

Akhil Reed Amar has long had the reputation of being a liberal. And so it it with some perturbation that, in viewing reactions to Maryland v. King, discussed here, I read this half-baked drivel:

DNA is already revolutionizing law enforcement. The ability for police to use cheek swabs of arrestees rests on a threadbare majority. The closeness of the vote, and the unusual coalitions on either side, suggest that the matter is far from settled. Justice Samuel A. Alito Jr., who was part of the majority, rightly called the case, Maryland v. King, “perhaps the most important criminal procedure case that this Court has heard in decades.”

As prosecutors, police agencies and civil libertarians consider the ruling’s implications, Justice Scalia’s stark dissent — and the fact that President Obama’s two appointees to the court so far agreed with it — makes it worthy of scrutiny, even if he was on the losing side. His argument is deeply flawed, because he did not get his history quite right.

Justice Scalia summarized his scathing dissent from the bench — a rare act that signals sharp disagreement. His opinion opened with these lines: “The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment.”

But the Fourth Amendment’s text is not nearly so simple as he makes it out to be. It merely requires that all searches and seizures be not “unreasonable.” Its words do not distinguish between intrusions seeking “evidence of crime” and other sorts of intrusions — say, to collect revenue, or preserve public safety.

OK, seriously? Watch the conjuring trick at work here:

STEP 1: Amar is setting an artificially high standard here--he is stripping "unreasonable" of any context, and requiring Scalia (and Ginsburg, Kagan and Sotomayor)to find a specific statement form a specified founder, all the while assuming that he cannot, even though,

STEP 2: The Supreme Court uses common law reasoning to develop constitutional doctrine, especially in construing texts like the Fourth Amendment which are not, as Amar correctly notes, self-explanatory. In the Fourth Amendment context, for nearly half a century, the leading case of Katz v. United States (1967) has long set out the template:

Searches conducted without warrants have been held unlawful "notwithstanding facts unquestionably showing probable cause," Agnello v. United States, 269 U.S. 20, 33, for the Constitution requires "that the deliberate, impartial judgment of a judicial officer . . . be interposed between the citizen and the police. . . ." Wong Sun v. United States, 371 U.S. 471, 481-482. "Over and again, this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes," United States v. Jeffers, 342 U.S. 48, 51, and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment [n18] -- subject only to a few specifically established and well delineated exceptions.

Now, as to searches of biological data--drawing of blood, for example, to test for alcohol in the wake of a drunk driving arrest--the Court has long found that such searches can only be justified when exigent circumstances, such as the deterioration of evidence of intoxication, made getting a warrant impracticable--an exception which the Court found just this year in Missouri v. McNeely is not a given in every case due to the greater facility in obtaining warrants as well as the increased sensitivity of blood testing. In particular, the Court in McNeely emphasized that the warrant requirement

applies to the type of search at issue in this case, which involved a compelled physical intrusion beneath McNeely’s skin and into his veins to obtain a sample of his blood for use as evidence in a criminal investigation. Such an invasion of bodily integrity implicates an individual’s 'most personal and deep-rooted expectations of privacy.' Winston v. Lee, 470 U. S. 753, 760 (1985); see also Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602, 616 (1989).

Notably, the Court acknowledged that "blood testing is commonplace in society and typically involves virtually no risk, trauma, or pain," but nonetheless found that this does not diminish the Court's "recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests."

STEP 3: Nor does the analogy to fingerprinting resolve the question; where a compelled intrusion into the body raises heightened Fourth Amendment concerns, the deposit of prints has been treated as raising less concerns; even then, it has become a regularly established incident to an arrest, which does not contravene the reasonable expectations of privacy, as long as the arrest is pursuant to a warrant. More here. That line may seem paper thin, but Scalia's argument is based on the common law of the Fourth Amendment, unpacking the meaning of "unreasonable" over two centuries. Amar, by slicing away this well-established approach to broad constitutional terms (dating back to Marbury v. Madison), tries to make Scalia look unreasonable.

STEP 4: Amar never addresses the opinion's reasoning, just the result. He likes the latter, but as pointed out eloquently in Scalia's dissent, nobody really believes the former--that the reason for the DNA sample is to identify the suspect. Of course it's not; it's to ship over to the Cold Case Unit, and see if we have any matches. The fact that Amar is comfortable with that outcome as a good thing doesn't make the search reasonable in terms of any standard criteria for determining the reasonableness of searches and seizures, oh, ever. That fact is rather supported by the fact that the only reason relied on by the majority is a transparent falsehood, never a good building block for constitutional analysis.

STEP 5: Ask where the dispositive quotes from the Framers are. Yeah, Scalia didn't need them, because he had the Court's own jurisprudence to build on, but c'mon, Tony, you're the history buff, Amar taunts, setting a new test.He should check out John Adams. (In fact, he probably has, since a part of the linked article takes Amar to task, quite properly, for his radically indeterminate Fourth Amendment analysis, which eschews any kind of standard other than incident-specific reasonableness, discerned from an after the fact standpoint.)

What is Amar really up to here? I'd suspect that his real bugbear is Scalia's (admittedly somewhat tattered by now) originalism--his resort to historical argument to address an ambiguity in the text. But the problem here is that Scalia's dissent isn't particularly originalist; it's a classic common law analysis, as John Jay Osborn describes in his 1979 novel The Associates:

Back in the dusty pages of a volume from 1899, you'll find an egg, ready to hatch, some judge with a new idea. In 1900, you'll find a case where the idea has broken out of its shell. It's sitting there, a sentence, words, a definitive statement, a rule. You catch glimpses of the rule as it flashes through the cases. . . . As it flashes through the cases, you see the rule grow or diminish. Say it grows. The descriptive side enlarges. More and more activity comes under the kind of conduct it outlines. "Do not discriminate." All right, what's discriminate, against whom, for what reasons? You start maybe with blacks, and a hundred years later everyone is included in the description--do not discriminate against the handicapped, women, homosexuals, children, the aged

This bog-standard common law reasoning Osborn describes is exactly what Scalia is engaged in here. It's routine, not remotely controversial.

Amar may be serving his own project of arguing that the Fourth Amendment has no answers for us, only questions. That does not, however, readily translate into a constitutional right--merely an unending "intellectual feast" that provides no guidance for law enforcement or protection for the citizenry. It's no way to do law, however interesting the seminar might be. Scalia has this one right.

Disappointed! (With a Helping of Credit Where Due)

Yesterday's decision by the Supreme Court in Maryland v. King is an exercise in rationalization. A 5-4 majority of the Court found that "When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody,taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.” The majority described the procedure as "quick and painless," and justified by "the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody.” The majority explained that this practice “is no different than matching an arrestee’s face to a wanted poster of a previously unidentified suspect; or matching tattoos to known gang members to reveal a criminal affiliation; or matching the arrestee’s fingerprints to those recovered from a crime scene.”

Except, of course, that it is. Because we all know--and indeed the facts of the case squarely presented--that the purpose of the DNA swab isn't to identify the prisoner; as Justice Scalia made clear in his superb dissent, the purpose of the DNA swab is to use the DNA to investigate whether the prisoner may have been guilty of other crimes of which the State has no reason to suspect him of having committed. Scalia refuses point-blank to accept the argumentum excrementum taurorem that the swab is solely for identification purposes:

The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.

It is obvious that no such noninvestigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous. And the Court’s comparison of Maryland’s DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today’s opinion has chosen to tell them about how those DNA searches actually work

I have long maintained that from 1986 to 2000, Scalia was "often an ornament of the Court," having by and large been genuinely engaged in a principled effort at an originalist jurisprudence--not one I often agreed with, but intellectually consistent and worthy of respect. His return to form is most welcome.

As to Justice Breyer joining this disingenuous majority opinion, I'll outsource my commentary to Kevin Kline:



Kidding aside, in the second edition of First Amendment, First Principles (2004), I noted the disappointing tendency of Justice Breyer to explicitly balance away constitutional rights in favor of his preferred policy outcomes. This is just one of a series of his living down to this description, I'm afraid.

Anglocat at the Forum

So this past Sunday, I was the guest speaker at the Rector's Forum at St. Barts. I spoke about the St Barts' EFM group, of which I am the mentor, and about the program generally. You can, if you are of a mind, listen to it here.

Many thanks to Buddy Stallings, and to the wonderful Roz Dimon, a terrific artist in her own right, as well as being St Barts' Communications Director, for getting the audio up so fast.