June 30, 2007

Reading the school integration case.

I've put off writing about the school integration cases that came out on Thursday, in part because I was writing under the pressure of deadlines on both Thursday and Friday, but also because I genuinely wanted to read the opinions and was not eager to express an instant opinion either to condemn or to praise what the Court did.

Back when cert. was granted, I called attention to the idea of deferring to local educational policymakers, which the Court did in Grutter, the University of Michigan Law School case where the Court approved of the use of race as a factor when the goal is classroom diversity.

So if I had one predisposition, it was that I hate to see community resources absorbed in litigation, and I would prefer to leave the results of local decisionmaking in place. That is, I find federalism and judicial restraint appealing. But, of course, I have a second predisposition: I want integration to succeed, and I hate to see a Supreme Court case that people will read as hostile to it.

I know the Court writes on top a large pile of difficult precedent, and I'm not going to use this blog post to try to sort through all of that and make a pronouncement about which opinion did the best job of sorting through it.

I will simply quote the passage that I found most persuasive, from Justice Breyer's dissenting opinion:
What has happened to ... respect for democratic local decisionmaking by States and school boards? For several decades this Court has rested its public school decisions upon Swann’s basic view that the Constitution grants local school districts a significant degree of leeway where the inclusive use of race-conscious criteria is at issue. Now localities will have to cope with the difficult problems they face (including resegregation) deprived of one means they may find necessary.

And what of law’s concern to diminish and peacefully settle conflict among the Nation’s people? Instead of accommodating different good-faith visions of our country and our Constitution, today’s holding upsets settled expectations, creates legal uncertainty, and threatens to produce considerable further litigation, aggravating race-related conflict.
These are values of federalism and judicial restraint, conservative values, which are especially worthy of respect when they they are not used to preserve or drag us back to our racist past.

IN THE COMMENTS: Many of my readers object to what I've said here, and I will respond to a few of them. Seven Machos writes:
I really don't understand your argument at all, Althouse. The Topeka Board of Education did plenty of local decisionmaking. The Court stepped in and said that certain decisions cannot be made. What's the difference here. You can argue with the policy issues, but you can't make a federalism argument here. The federal government can either... prevent unconstitutional practices or it can't.
You're assuming the practice in question is unconstitutional. That is the matter to be decided in the case. Justice Breyer is not saying what happened here is unconstitutional, but I can't (or won't) do anything about it. For him, considerations of federalism and judicial restraint affect the analysis of whether there is a right. Taking these and other concerns into account, he finds no right violated in this case. Brown v. Board of Education involved a very different set of facts. The Court has a difficult task in defining the scope of Equal Protection, it is not obvious where to draw the line, and it is appropriate for the Court to be aware that once it says that a right exists it is denying people the freedom to make choices in a democratic fashion and that it is diverting their time and money into litigation.

Beldar writes:
"What has happened to ... respect for democratic local decisionmaking by States and school boards?"

This was, of course, the exact argument used to justify racial segregation whose purpose was to benefit whites and harm blacks.

Chief Justice Roberts has it exactly right, and it's so profoundly simple that even a lawyer like me or a con law professor like you ought to get it:

"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."
You are asserting that the simplest formulation of legal doctrine must be the correct one and implying that anyone who disagrees with that assertion is failing to understand something simple (and is, presumably, either an idiot or is playing dumb). In your view of the law, there can be no subtlety, no careful weighing? Are you willing to apply that proposition across the whole range of legal issues? Think it through. If courts could only proceed in that fashion, I think we would end up with fewer, not more rights.

From the other side, AJD said:
Oh, come on. Nothing about the man you've fawned over all year? The smiling C.J who is harkening us back to that racist past.

But weren't his prose great! Don't you love his sentences!!
There are limits to how long a blog post can be and I chose not to parse through all the opinions in this case, but in fact I don't think there is anything racist about the Chief Justice's opinion. He drew the line and defined the right in the way he saw fit, and he wrote a solid opinion explaining the decision. What I wrote in this post does not imply that he is taking us back to our racist past, only that he could have given more deference to the choice of a local majority because that democratic choice was not infected by racial animus.

And my support for the Roberts nomination had nothing to do with his good looks but with his learning and his powers of analysis. In fact, clear, elegant writing is a sign of the clear, strong thinking we want in a judge. And judges need to prove to us in writing that they are doing their job properly. Unlike you, I am able to respect and appreciate the work of judges who come to conclusions that I myself would not reach.

Blue.

DSC_0083.JPG

Fragile.

Mickey Mouse-ish character martyred....

The show with a terrorist mouse got canceled, and Hamas TV provided the children with closure by having Farfour beaten to death.

ADDED: The video.

Did Mitt Romney torture his dog?

This cruelty to animals story has legs... and a tail... and loose bowels.... This is the clearest example ever of smearing a candidate with shit. You know the story. Romney transported his dog in some sort of container that was affixed to the top of his station wagon, and the dog got diarrhea that the family became aware of when one of the kids saw it dribbling down the window.
“If you wouldn’t strap your child to the roof of your car, you have no business doing that to the family dog! I don’t know who would find that acceptable,” [said PETA President Ingrid Newkirk]....

While PETA doesn’t take a position on any candidate, Ingrid offered up the theory that Mitt may have “what neurologists call an ‘absence of the mirror neuron,’ a physiological condition in the brain which means they cannot feel basic compassion.”
Isn't it quite standard to plant the idea that Republicans lack feeling? I was just reading this review of a biography of Condoleezza Rice ("Twice as Good: Condoleezza Rice and Her Path to Power," by Marcus Mabry). The reviewer, Jonathan Freedland, tells us the reader feels "oddly estranged" from Rice, not through any fault of the author's, but because of the "chilly steel he finds" in her heart:
His search for vulnerabilities or doubt reveals only a cold, unwavering self-discipline. One of the book’s most telling moments comes when the 17-year-old Rice realizes, after surrendering her childhood to the goal of becoming a concert pianist, that she is not, after all, good enough. Her teacher ruled that while “technically competent ... she was too detached emotionally to be a great pianist.” She needed “disciplined abandon”: she had the discipline all right, she just couldn’t let herself go. Yet even this major blow barely troubles her. She simply decides to pursue another goal....

The former arms inspector David Kay calls her the worst national security adviser since the office was created, and the verdict seems harsh but not wholly unwarranted.

Rice’s defense would rest on her extraordinary presentational skills, her fluency and poise under inquisitorial fire. So what if she is more a synthesizer of others’ ideas than an original thinker, runs this logic; she has a sure political touch. Except even that is in doubt. Caught shopping for shoes in New York as the corpses floated in New Orleans after Hurricane Katrina, Rice explained that “I didn’t think about my role as a visible African-American national figure. I just didn’t think about it.” Given what we know of her upbringing, that isn’t psychologically surprising — but it showed a political tin ear.
So heartless and cold, these Republicans... who will, of course, take every opportunity to say that Democrats are so mushily sentimental they can't even think.

UPDATE: From Ann Romney's blog:
Surprise, surprise, the media didn't get the dog story right. Our dog Seamus rode in an ENCLOSED kennel, not in the open air. And he loved it. Every time he saw it, he jumped up on the tailgate, walked in, and lay down. It was just like the kennel he curled up in at home.
The dog wasn't in an exposed cage.

ANOTHER UPDATE: Is this wrong?

"Died ... after a long and remarkably courageous struggle with cancer..."

I feel sorry for the man who died and sympathetic to his family, so I won't name him here. I only want to comment on the phrase quoted above.

Old Onion headline:
Loved Ones Recall Local Man's Cowardly Battle With Cancer
Sample text:
According to [Russ Kunkel's] personal physician, Dr. James Wohlpert, the type of cancer Russ had generally takes at least four months to advance to the terminal stage. But because of what he described as a "remarkable lack of fighting spirit," the disease consumed him in less than one.

"It's rare that you see someone give up that quickly and completely," Wohlpert said. "Cancer is a powerful disease, but most people can at the very least delay the spread of it by maintaining a positive outlook and mental attitude. This, however, was not the case with Russ.
Cancer inflicts terrible suffering. But you don't step forward to endure it in place of others. It happens, and you do what you can. Is one victim really more "courageous" than another? What does it mean to be "remarkably courageous"? What unnamed persons are you implying were courageous, but actually significantly less courageous than the newly departed? And does anyone ever not get credit for courage? We're bound to the script: cancer, therefore courage. There's never a Russ Kunkel.

I think you know why. It's why you laugh so much when you read about Russ. It's because we -- if we don't already have terminal cancer -- have so much anxiety about the prospect of becoming the next victim. We're comparing the dead one, who behaved like everyone else under the circumstances, with the vision of ourselves discovering that is our fate.

June 29, 2007

Friday pop quiz.

What Velvet Underground song mentions Wisconsin?

"Thank God" the Piccadilly bombing was averted.

Chris Matthews kept talking like that. Is it right? Mark Daniels, a Christian minister, asks. I've been listening to the audiobook of Christopher Hitchens reading his new book "God Is Not Great: Religion Poisons Everything," and, seeing Mark's question, I could almost hear Hitchen's sneering about how fatuous Matthews' exclamation is. But it looks like Mark and Christopher are on the same page here.

Seriously, if you credit God for stopping one attack, you're implicitly blaming Him for not stopping another, aren't you?

CORRECTION: I had "how fatuous the question is." Didn't mean that. [And "Good" for "God." Sorry. It's been a hard day. Or is God toying with me?]

ADDED: In the comments, I'm told that Mark comes around to accepting Matthews' exclamation. I guess I fell asleep during the sermon. Speaking of falling asleep, last night I had a dream about Hitchens. Someone I know had published something saying his argument that God does not exist was based entirely on the evil that human beings have done in His name and Hitchens was giving him an earful about what actually was in the book.

Want.

Getting?

MORE: Wait?

Who's more likely to enter the race: Gore or Thompson? Gore!

That's what I get out of reading John Hinderaker at Power Line today.

1. re Gore: "Gore had canceled all his scheduled events in the next six months," according to the Taipei Times.

2. re Fred Thompson: "The Fred Thompson campaign recently set up an event for 60 of Congress's most solid conservatives. Many of them were hoping to be able to endorse Thompson. Unfortunately, Thompson did not impress the Congressmen. He did not appear to be ready for a tough Presidential campaign. One of his aides explained that Thompson was 'rusty,' which, as one Congressman told me, did not inspire much confidence in this YouTube era. Some of those who attended are now looking at Mitt Romney as the most viable conservative in the race."

"Rusty." Great word. What does it connote? Lazy/dumb? Or just not in the mood? Or is John Hinderaker trying to tip us toward Romney? This business about "confidence in this YouTube era" seems to say: Don't worry about slick. We need slick. Slick is good.

As for Gore, what do you make of that? Someone check to see if he's on a diet. If so, he's running. And I say, welcome! Gore is a worthy entrant in the race.

UPDATE: Now, Power Line is saying that the Gore story from Taiwan is a fake. The link goes here:
I just contacted Al Gore's office and was told the following about the article.
It is completely and utterly false.
1. He never accepted an event in Taiwan
2. We have loads of events on the schedule in the next six months
I don?t know how to spell bubkus but there?s no credibility to this whatsoever.
Hmmm... so is that the end of it, or is there something suspicious about the denial? "Completely and utterly" is awfully strong. I was thinking maybe "never accepted" left some room for a tentative plan that was then abandoned, and maybe "loads of events on the schedule" means... oh, I give up!

If you want to be a photographer in NYC, you'd better be a loner.

Because unless you're alone, you'll need a license and $1 million in insurance to take pictures for more than a half hour in a single public location if this idiotic proposal goes through.

Get that cucumber away from that tomato.

Says al Qaeda.

Purple or banana-like.

Two orchids. Which one do you prefer?

Orchid that reminds me of a banana

Purple orchid

That says so much about you.

Me, I have a strong preference. I suppose it's easy to tell.

"I think you reserve impeachment for grave, grave breeches, and intentional breeches of the president's authority."

USA Today transcribes the remarks of Barack Obama.

Let's try to understand what this means. We've got to wait until the next election unless... unless what? George Bush deliberately puts on some incredibly serious pants?

"Where’s the Fairness Doctrine when you really need it?"

Asks Boston Herald columnist Howie Carr as he lashes into John Kerry for wanting to resurrect the loathsome "Fairness Doctrine":
How come no one outside Massachusetts ever heard about the “16-point buck” he claimed to have had between the crosshairs on the Cape? How about how he claimed to have run the Boston Marathon but couldn’t recall the year?

What about the condo flipping? What about the Bob Brest Buick? Or the fact that George Bush actually got higher grades at Yale than Kerry? What about all his free rides on the Florida S&L bandido’s private jet back in the early ’90s., pre-Mama T? How come most voters still don’t know any of these stories?
Carr's point is a familiar one: liberals bitch about right-wing radio but never acknowledge the liberal bias of mainstream media, especially NPR. But, oh, how he goes after Kerry. Delicious!

Now, Kerry's whiny nonsense provoked a satisfyingly quick smackdown as the House voted 309-115 for a bill that would keep the FCC from doing what it hasn't even made a move to do. We did have some commentators waggling their fingers and saying things like: "Unless broadcasters take steps to voluntarily balance their programming, they can expect a return of fairness rules if Democrats keep control of Congress and win the White House next year." That was threatening enough.

Looking for a link for the House vote, I started with a search in the NYT, which, it turns out, has written nothing about the recent talk about the Fairness Doctrine.

In fact, the NYT hasn't mentioned the Fairness Doctrine since November 2004, where it appeared, appropriately enough, in an obituary (TimesSelect link):
The Rev. Billy James Hargis, a fiery evangelist and anticommunist preacher who founded the Christian Crusade and reached millions in an international ministry that used radio, television, books, pamphlets and personal appearances, died on Saturday at a nursing home in Tulsa, Okla. He was 79....

At the height of his popularity in the 1960's and 1970's, Mr. Hargis -- a shouting, arm-waving, 270-pound elemental force whom Oklahomans called a ''bawl and jump'' preacher -- broadcast sermons daily or weekly on 500 radio stations and 250 television stations, mainly in the South, and in other countries. He traveled almost constantly to deliver his Christian and anticommunist messages, wrote 100 books and thousands of articles and pamphlets, and published a monthly newspaper....

Another case produced a landmark court decision and sharply cut Mr. Hargis's broadcasting empire. He was accused by Fred J. Cook, a journalist, of unfairly maligning him in a radio broadcast. Mr. Cook sought free air time to reply under the Federal Communications Commission's fairness doctrine. A radio station in Red Lion, Pa., sued, saying its First Amendment rights would be violated. But the Supreme Court in 1969 upheld the constitutionality of the fairness doctrine, and many stations thereafter were less inclined to broadcast controversial programs.
Here's the old Red Lion case for your non-edification. I was going to quote something from it, but there's no inspiring dissenting opinion, and it's a rather dull tract by Justice White, resting heavily on the scarcity of the airwaves and the need for the government to regulate (to avert cacophony).

June 28, 2007

Mellow. Shiny.

Satiny leaves

Satiny.

Am I supposed to comment on the sick symbiotic relationship between...

... John Edwards (desperately needs a new way to drum up cash) and Ann Coulter (has a book coming out just now in paperback)?

Here's what I'm not talking about.

MORE: TRex -- who mocks Coulter for incoherent raving by incoherently raving about drug use -- seems delirious with glee that to announce that Coulter's book ("Godless") declined #85 to #98 on Amazon’s Top 100 Non-fiction Politics top sellers list at one point yesterday. But today, it's #25. Unfortunately, kicking up a storm on TV actually does sell books.

YET MORE: "Coulter's Words Help Edwards Raise Cash."

"Teachers taught, and students listened. Teachers commanded, and students obeyed."

It's nice to see that UW-Madison history professor William Reese is so prominently cited in the "Bong Hits 4 Jesus" case.

From the Thomas opinion:
By the time the States ratified the Fourteenth Amendment , public schools had become relatively common. W. Reese, America’s Public Schools: From the Common School to “No Child Left Behind” 11–12 (2005) (hereinafter Reese)....

Because public schools were initially created as substitutes for private schools, when States developed public education systems in the early 1800’s, no one doubted the government’s ability to educate and discipline children as private schools did. Like their private counterparts, early public schools were not places for freewheeling debates or exploration of competing ideas. Rather, teachers instilled “a core of common values” in students and taught them self-control. Reese 23; A. Potter & G. Emerson, The School and the Schoolmaster: A Manual 125 (1843) (“By its discipline it contributes, insensibly, to generate a spirit of subordination to lawful authority, a power of self-control, and a habit of postponing present indulgence to a greater future good …”); D. Parkerson & J. Parkerson, The Emergence of the Common School in the U. S. Countryside 6 (1998) (hereinafter Parkerson) (noting that early education activists, such as Benjamin Rush, believed public schools “help[ed] control the innate selfishness of the individual”).

Teachers instilled these values not only by presenting ideas but also through strict discipline. Butts 274–275. Schools punished students for behavior the school considered disrespectful or wrong. Parkerson 65 (noting that children were punished for idleness, talking, profanity, and slovenliness). Rules of etiquette were enforced, and courteous behavior was demanded. Reese 40. To meet their educational objectives, schools required absolute obedience. C. Northend, The Teacher’s Assistant or Hints and Methods in School Discipline and Instruction 44, 52 (1865) (“I consider a school judiciously governed, where order prevails; where the strictest sense of propriety is manifested by the pupils towards the teacher, and towards each other . . .” (internal quotation marks omitted)).2

In short, in the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed. Teachers did not rely solely on the power of ideas to persuade; they relied on discipline to maintain order.
Any comments on that idea for public schools? Note the distinction between: 1. preferring that model for the schools, and 2. accepting it as something that is constitutionally permissible. You can believe #2, without going for #1. You can also reject both #1 & #2, or accept both. You could also believe #1, but not #2, but I will have to disapprove of you if you don't concede that you must forgo your preference.

ADDED: Thanks to my colleague, Karl Shoemaker, who pointed out the references to Reese. Regular readers remember Shoemaker as the historian who sent me this photo of ancient marginalia (and gave me the chance to write my favorite rhyming blog post title:

Marginalia

Look closely.

What do you see?

Flower closeup

I see my deep pleasure at meeting a deadline that has been weighing heavily on me for the last two days. Now, to relax....

What do you picture me doing, in the relaxed mode symbolized by this flower?

Orange flower

If you said, reading two new Supreme Court cases, you are right!

"A humiliating defeat for Bush and the self-styled, MSM-idolized Grand Bargainer."

Cloture fails on the immigration deal in the Senate, and Mickey Kaus is happy to see that it didn't even get a majority. And:
Fifteen Dems (plus Sanders) vote against cloture, making it unclear if Sen. Reid has achieved what seemed to be his unadvertised dream: A failed bill he could blame on the Republicans.

Panetti spared.

A 5-4 decision written by Justice Kennedy will mean more consideration of the question whether Panetti is too mentally ill to understand why he is being punished. Here's the case. I will have to read and write about it later, but there are some complexities about when a person may bring more than one habeas petition and the extent to which the right asserted was "clearly established." Justice Thomas's dissenting opinion -- joined by Roberts, Scalia, and Alito -- deals with the requirements of the habeas statute: "Because the Court’s ruling misinterprets AEDPA, refuses to defer to the state court as AEDPA requires, and rejects the Court of Appeals’ approach without any constitutional analysis, I respectfully dissent." Without any constitutional analysis? That's harsh.

Schools failed to prove "that there is no other way than individual racial classifications to avoid racial isolation in their school districts."

Writes Chief Justice Roberts in "a historic ruling on race in public policy":
[T]he Supreme Court divided 5-4 on Thursday in striking down voluntary integration plans in the public schools of Seattle and Louisville. Chief Justice John G. Roberts, Jr., wrote the majority opinion in the combined cases.
MORE: From SCOTUSblog:
The Chief Justice, in his oral announcement of the ruling, insisted that the Court was remaining faithful to Brown v. Board of Education in barring public school districts from assigning students on the basis of race.

Justice Kennedy recited from his separate opinion, in which he declined to join the Roberts opinion as it discussed the lack of a compelling interest in race-based preferences. The Chief Justice's opinion notes that Seattle was never officially segregated by race, and that Louisville is no longer under a court order to desegregate its once-segregated system.
AND: Here's the opinion. I won't be able to read this for a few hours, so please check out the other blogs or discuss the case in the comments. I think it is very important.

Newsweek serves up the hot news that voters are swayed by emotion...

... and tries to sell us the laughable theory that Democrats, not realizing this blindingly obvious reality, have gone wrong by relying only on rational argument. Meanwhile, "the GOP has already mastered the dark art of psych-ops—of pushing the right buttons in people’s brains to win their vote."

Ridiculous.

The article is mainly about the book “The Political Brain: The Role of Emotion in Deciding the Fate of the Nation,” by Drew Westen:
Westen’s thesis is simple. “A dispassionate mind that makes decisions by weighing the evidence and reasoning to the most valid conclusions bears no relation to how the mind and brain actually work.” That’s true when it comes to choosing a significant other, buying a car, and choosing a president. Madison Avenue has known this for decades. Democrats haven’t.
Oh, please.
... Westen has penned powerful sound bites and mini-speeches that Dems could use to justify their core positions on perennial issues. Abortion, and bills outlawing it (as GOP platforms have long called for) or requiring parental consent? “My opponent puts the rights of rapists above the rights of their victims, guaranteeing every rapist the right to choose the mother of his child. . . My opponent believes that if a 16-year-old girl is molested by her father and becomes pregnant, she should be forced by the government to have his child, and if she doesn’t want to she should be forced by the government to go to the man who raped her and ask for his consent.” Tougher gun restrictions? How about an ad showing a parade of Arab-looking men walking into a gun store, setting their money on the counter and walking out with three or four semi-automatics each, with this voice-over: “My opponent thinks you shouldn’t have to show a photo ID or get a background check to buy a handgun. He thinks anyone who wants an AK-47 should be able to buy one, no questions asked. What’s the point of fighting terrorists abroad if we’re going to arm them over here?”
Hilariously, Newsweek claims that the reason Democrats and not Republicans are going to Westen for advice is that Republicans already know they need to use emotion. Never mind that that Westen's book is plainly speaking to Democrats and advising them on how to make their positions more emotionally appealing.

Ridiculous.

"I believe that Ann intentionally keeps her camera focused on the books behind her... so that she is filmed in a flattering soft focus."

A comment on the new Bloggingheads episode. What do I do to inspire such ideation?

I have an iMac with a built-in camera, and I use QuickTime Pro. The result comes from using very basic equipment. It's just a typical lo-res "webcam" look. And I can't even think how you'd go about focusing on the edges of the picture.

IN THE COMMENTS: Trevor writes:
Well obviously the bhtv commenter is just riffing on Ann's discussion of composition during the American Idol vlog. Ann, not being stupid, knows that. That comment was a joke. This post was also a joke. Did none of you people watch the episode?

Actually, I didn't read it that way, but it's possible. If I've wronged "Leggs Bataglia," he/she should let me know. But I get so much criticism over there for things like "posing" and using "cheesy" feminine wiles, that I wasn't inclined to see subtle cleverness.

Sternomancy.

A form of fortune-telling, dating back to 18th century Spain. What a great field for the huckster. The linked report is translated -- imperfectly -- from the Russian. (Check out the title. I think they meant "feelers" not "whiskers.")

Speed-eater says his "jaw has abandoned the frontline."

You can't eat 60 hot dogs in 12 minutes with an arthritic jaw.

A new category of sports injury.

When Larry trapped Paris.

It was mostly bland as hell, but there was one point in his interview with Paris Hilton where Larry King punctured her glossy veneer. She was all about how jail had transformed her and how she's going to devote herself to good causes -- children, homeless women, breast cancer, multiple sclerosis -- and she said she read a lot of books in jail. Really improving herself, you know. But then it seemed like the only thing she was reading was all the fan mail. Eventually, we hear about one book: the Bible. Did she read it every day? Yes! What's your favorite Bible passage? Uh, I don't really have a favorite....

Scalia mocks minimalism.

Linda Greenhouse shows where Justice Scalia has recently expressed his antagonism toward the more moderate style of the Chief Justice.

In the issue ads case (Wisconsin Right to Life): "This faux judicial restraint is judicial obfuscation."

In Freedom From Religion, the case that restricted standing to use the Establishment Clause to challenge Executive Branch decisions: "Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions."

But the liberal lawprofs consulted by Greenhouse don't seem too impressed by what she wants to portray as a rift among conservatives:
As Prof. Jack M. Balkin of Yale Law School wrote on his blog, Balkinization, “It is the difference between bomb throwing and dismantling.”

... Prof. Erwin Chemerinsky of Duke Law School observed that Chief Justice Roberts, who has taken the conservative position in every ideologically divided case this term, could hardly be described as less conservative than Justice Scalia.

Prof. Mark Tushnet of Harvard Law School, whose recent book, “A Court Divided,” explored the differences among Republican-appointed members of the Rehnquist court, said that “a consolidated conservative majority, not a divided conservative majority,” was now in charge.
I tend to agree with this. Roberts (with Alito) and Scalia (with Thomas) are not at cross purposes. How shocking it would have been if the Court in those two cases gone ahead with the overruling that Scalia recommended. What a gift it would have been to the Democratic presidential candidates, who would have impressive new substance for scaring people about what another Republican President would do to the Court.

June 27, 2007

"Bong Hits 4 Lawyers."

That's the name of the name of the new Bloggingheads episode with me and David Lat. Topics:
How David became a muckraking law-blogger (13:04)

Virtual crossdresser exposed! (11:12)

Money-grubbing lawyers exposed! (15:17)

The AutoAdmit scandal: Can you sue an emoticon? (21:17)

Ann on Hillary's onion rings, Bill's carrots (12:47)

Judicial puffery in the "Bong Hits 4 Jesus" case (08:29)

The dogs of the day, summer 1982.

Memories of the Chipwich -- see previous post -- led me back to this article (TimesSelect link) about the fads of the summer of 1982:
Down coats and spinach salads, high-tech sofas and sauces nouvelles, Rubik's Cube and the Chipwich, cats and Donkey Kong, Izod shirts and sequined head antennae, sesame noodles and the resurgent miniskirt - all have burst upon us sporadically.
Bursting resurgent miniskirts... remember?

Sequined head antennae... haven't thought about them in a long while.
Now it is the time of the akita. The akita is a dog, simply a dog with a certain historical cachet, to be sure, of an ancient breed native to Japan and apparently possessing an admirable character, but just a dog. Yet undeniably the akita is the New York dog of the moment, and to have one is to be exceptionally modish.
What a lucky dog, to have been the dog of the moment.
Linda Ronstadt and Yoko Ono own akitas, and one buyer confessed that he had bought one because Judith Jameson, the dancer, has one. On Sunday mornings the small Village park at Horatio and Hudson Streets becomes a gathering place for akitas and their owners, a place for the dogs to play and their owners to preen over pets burdened with such names as Mick Jagger, Dr. Pangloss, Mercedes, Gorm, Black Shogun and Kuma, the last meaning ''bear'' in Japanese.
Ah, for the days when one longed to be like Linda Ronstadt and Yoko Ono.

And yet, Yoko Ono was on Larry King last night. Tonight, Larry's got this summer's fad, Paris Hilton.

How will you think about her -- if you survive so long -- a quarter century from now? Will all the meaningless little things seem deeply evocative? They will -- if you are still alive.

Do not neglect to love the sequined head antennae of today.

Food law.

Restaurants are suing to protect their intellectual property rights:
[Rebecca Charles] acknowledged that Pearl [Oyster Bar] was itself inspired by another narrow, unassuming place, Swan Oyster Depot in San Francisco. But she said she had spent many months making hundreds of small decisions about her restaurant’s look, feel and menu.

Those decisions made the place her own, she said, and were colored by her history. The paint scheme, for instance, was meant to evoke the seascape along the Maine coast where she spent summers as a girl.

“My restaurant is a personal reflection of me, my experience, my family,” she said. “That restaurant is me.”
So she copied, and then she was copied. She sues. The defendant, Ed McFarland, says Ed’s Lobster Bar is similar, but not a copy. Which is pretty much what Charles says about Swan.

Chefs are also seeking patents for things like a way to print pictures of food on paper that you can eat and that tastes like food.

Does the paper taste like the food in the picture or something else -- to mess with your mind or challenge your prejudices... like diversity jelly beans?

Oh, I just had a flashback. No, not to blotter acid! To the days of my federal court clerkship, a quarter century ago, when there was litigation about ice cream sandwiches made with ice cream between two big chocolate chip cookies. The original, called Chipwich, was easy enough to copy, and the federal court lawsuit ended with the judge telling Good Humor that if anyone looked at the Chipwichish item pictured on their ice cream wagon and asked for a Chipwich, they'd have to say, "We don't have Chipwiches; we have Good Humor products."

June 26, 2007

Coming attractions...

Noted.

Hip friend replacement.

Slate wants to replace your "hip friend":
Slate V will... help you find the best video produced elsewhere on the Web. Our feature "Did You See This?" will sift and sort the ocean of content already out there and show you the most compelling and exotic videos online. If we do this well, you won't have to wait for that hip friend to e-mail you the link to the latest must-see "water cooler" clip. By putting these Web-video gems all in one place, we hope to help you indulge the voyeur within—and to enable you to waste your time more efficiently.
Are you excited about "Slate V," which is --- we're told, in decidedly unhip language -- "an ordered universe of video, in which all the content has the irreverent wit, sharp intelligence, and counterintuitive insights that have been the hallmarks of Slate the magazine for the past 11 years."

ADDED: I watched this video, with Dear Prudence responding to a letter written by a woman who didn't like her boyfriend's dog. It was cutely put together with animation illustrating the problems -- like the sound the dog makes when she's licking herself -- but there was nothing "counterintuitive" about telling the woman she's got to put up with it or she'll lose her boyfriend! I'd have told the woman not to sleep overnight with her boyfriend. That dog is annoying her the most during the night. Just pleasantly breeze out of there after you've had your fun and let him spend the night with the dog. Shake things up. Or here's another idea, when the dog licks herself, lick yourself. Give him something to think about.

"A sharp turn away from campaign finance regulation."

Here's the Linda Greenhouse piece on the "issue ads" case, Wisconsin Right to Life. Under the Court's ruling, there's a free speech right to run the ads unless they are “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.” How much is this going to affect the 2008 campaign?
While the decision did not deal directly with the soft-money ban, which is in a separate section of the law, election experts said the effect would be to undercut the soft-money section as well by permitting a largely unlimited flow of money from corporate treasuries to pay for the all-important broadcast advertisements in the weeks before primary and general elections. Groups seeking to influence the outcome of the election could easily sidestep the prohibition on explicit appeals for or against candidates, supporters of the law said.
If it's easy to "sidestep the prohibition," isn't that a good thing? The line between what you have a right to do and what's illegal should be clear -- especially in free speech law. Here, though, the idea is that you only have a right because we're assuming you aren't actually trying to affect the election, yet the Court, by setting up such a presumption to defend that right, has given cover to all sorts of people who absolutely do want to affect the election. And so the McCain-Feingold law is deeply undermined.

Here's what I wrote about the case yesterday. I tend to think that there will be a lot of lawsuits as people take advantage of the Court's ruling and run ads that have an impact on elections. You might think it should be easy to say there's always a "reasonable interpretation" that there was some other purpose to the ad, but the question is when will courts be willing to exclude all the alternate interpretations in particular cases. I think the stakes are so high and the urge to run ads so great that we will see plenty of cases.

Do doctors waste your time by talking about themselves?

They're just trying to be friendly. They've heard they're supposed to have rapport or something.
The researchers studied the conversations looking for any hint that patients were helped when the doctors talked about themselves.

“We looked for any statement of comfort, any statement of appreciation, any deepening of the conversation,” Dr. Beckman said.

They found none.
None!

What is going on here? Is it something about the sort of person who becomes a doctor?

Paris...

... free.

Paris is free.

And this blog is not Paris-free.

Sorry.

June 25, 2007

Emerging from my wordless plunge...

The Thai Pavilion

I have one more wordless thing.

Enough talk already.

Olbrich Garden

Time to seek refuge in the wordless world.

Free speech prevails in the issue ads case in an as-applied challenge to McCain-Feingold.

The Supreme Court also decided the Wisconsin Right to Life case:
Completing a day of 5-4 decisions, the Court issued its fifth ruling of the day, concluding that a Wisconsin abortion rights group had a First Amendment right to aid during election season campaign ads that named a candidate running for the Senate. Three of the five Justices in the majority urged the Court to overturn the part of a 2003 ruling that upheld the constitutionality of the federal law restricting such radio and TV ads close to elections. The Chief Justice's main opinion, joined fully by Justice Alito, said the case did not provide an occasion to revisit that ruling. Justice Souter recited at length from the bench for the four dissenters -- who were in the minority on each of the day's rulings.
Here's my earlier post on the case, written after the oral argument:
[T]he Wisconsin Right to Life case... is about the provision the McCain-Feingold campaign finance law that prohibits issue ads right before the election if they mention the name of a candidate. The Court rejected a facial challenge in McConnell in 2003, but this is an as-applied challenge, and, moreover, McConnell was decided 5-4 with O'Connor in the majority. Alito has replaced O'Connor and may be expected to vote with Scalia, Thomas, and Kennedy, who dissented in McConnell. The fourth dissenter was Rehnquist, and Roberts, who replaced Rehnquist may be expected to join Scalia, Thomas, and Kennedy as well.
So, Roberts and Alito vote as expected. And you can expect to see plenty of issue ads -- and litigation about them -- in the future.

ADDED: Here's the opinion. It's rather fragmented. Chief Justice Roberts writes for a majority for only part of his opinion. Only Justice Alito sticks with him until the end (but he still writes a separate opinion). Scalia, Kennedy, and Thomas peel away, and Scalia writes their concurring opinion. The liberals stick together with Justice Souter doing the writing.

Let's start with Justice Scalia. Here's how he starts:
A Moroccan cartoonist once defended his criticism of the Moroccan monarch (lese majesté being a serious crime in Morocco) as follows: “ ‘I’m not a revolutionary, I’m just defending freedom of speech… . I never said we had to change the king—no, no, no, no! But I said that some things the king is doing, I do not like. Is that a crime?’ ” Well, in the United States (making due allowance for the fact that we have elected representatives instead of a king) it is a crime, at least if the speaker is a union or a corporation (including not-for-profit public-interest corporations) and if the representative is identified by name within a certain period before a primary or congressional election in which he is running. That is the import of §203 of the Bipartisan Campaign Reform Act of 2002 (BCRA), the constitutionality of which we upheld three Terms ago in McConnell v. Federal Election Comm’n, 540 U. S. 93 (2003). As an element essential to that determination of constitutionality, our opinion left open the possibility that a corporation or union could establish that, in the particular circumstances of its case, the ban was unconstitutional because it was (to pursue the analogy) only the king’s policies and not his tenure in office that was criticized. Today’s cases present the question of what sort of showing is necessary for that purpose. For the reasons I set forth below, it is my view that no test for such a showing can both (1) comport with the requirement of clarity that unchilled freedom of political speech demands, and (2) be compatible with the facial validity of §203 (as pronounced in McConnell). I would therefore reconsider the decision that sets us the unsavory task of separating issue-speech from election-speech with no clear criterion.
Unsurprisingly, he's for overruling.

Chief Justice Roberts takes the narrow approach:
[T]he speech at issue in this as-applied challenge is not the “functional equivalent” of express campaign speech. We... conclude that the interests held to justify restricting corporate campaign speech or its functional equivalent do not justify restricting issue advocacy, and accordingly we hold that BCRA §203 is unconstitutional as applied to the advertisements at issue in these cases.
Alito's very short separate opinion states that it is unnecessary to reconsider whether §203 is unconstitutional on its face but:
If it turns out that the implementation of the as-applied standard set out in the principal opinion impermissibly chills political speech... we will presumably be asked in a future case to reconsider the holding in McConnell v. Federal Election Comm’n...
Until then, enjoy the chill. And the litigation.

"Bong Hits 4 Jesus" -- the teacher wins, the student loses.

I'm only reading the outcome over on SCOTUSblog:
The fourth ruling, written by Chief Justice John G. Roberts, Jr., over three full dissents and one partial dissent, declared that public school officials do not violate a student's free speech rights by punishing the student for words or actions that promote a drug message.
Here's my post written after the oral argument. I sympathized with the student and thought that the Court should acknowledge that his rights were violated, but thought the teacher should win on qualified immunity grounds, given the unclarity of the law:
But the Court can also say that this wasn't yet clear, which would save the principal from having to pay damages. It would, however, set the stage for the next suit for damages, as the Court can use this case to make the law clear. And it should.
I'm waiting to see the opinion, but if SCOTUSblog is correct, the Court simply rejected the student's claim that he had a free speech right here.

ADDED: Here's the opinion. Chief Justice Roberts is joined by Scalia, Kennedy, Thomas, and Alito, and we've got concurring opinions from Thomas (alone) and Alito (joined by Kennedy). Breyer (alone) has a mixed opinion about it (concurring in the judgment in part and dissenting in part). And Stevens dissents, joined by Souter [ADDED: and Ginsburg].

A big dispute between the majority and the dissent is whether "Bong Hits 4 Jesus" is a pro-drug message or just ridiculous nonsense. And which way does that cut? Is the student in a better position if we see it as a pro-drug message -- as the majority does -- because then it's political speech and entitled to more protection? No, according to the majority:
The danger here is ... serious and palpable. The particular concern to prevent student drug abuse at issue here, embodied in established school policy, extends well beyond an abstract desire to avoid controversy.
Justice Stevens chides the majority for putting low value on free speech in this case and doing the opposite in today's other free speech case, Wisconsin Right to Life. Roberts answers in a footnote: "there is no serious argument that Frederick’s banner is political speech of the sort at issue in Wisconsin Right to Life."

Justice Breyer comes closest to adopting the position I recommended. He would simply say that the teacher has qualified immunity. Unlike me, he would not also use the case to clarify the law. There is a very important issue of judicial restraint here, one that Breyer has written about before. There is a case -- Saucier v. Katz, 533 U. S. 194, 201–202 (2001) -- that says that courts ought to decide first if a right was violated and then determine whether it was clear enough at the time so that the government official should be deprived of qualified immunity. This order of decisionmaking violates the precept that courts should avoid unnecessary questions of constitutional law. Moreover, the Court missed an opportunity to reach consensus (and to proceed by minimalism):
In resolving the underlying constitutional question, we produce several differing opinions. It is utterly unnecessary to do so. Were we to decide this case on the ground of qualified immunity, our decision would be unanimous, for the dissent concedes that Morse should not be held liable in damages for confiscating Frederick’s banner. Post, at 1 (opinion of Stevens, J.). And the “cardinal principle of judicial restraint” is that “if it is not necessary to decide more, it is necessary not to decide more.” PDK Labs., Inc. v. Drug Enforcement Admin., 362 F. 3d 786, 799 (CADC 2004) (Roberts, J., concurring in part and concurring in judgment).
This is an appealing argument, but it has a troublesome downside. If the courts keep avoiding making the law clear, defendants continue to prevail on immunity grounds. This could mean that there are rights that we never get to learn about and that government officials are able to continue to violate with impunity.

Justice Thomas practices originalism, and that has him looking back on old school traditions:
[I]n the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed. Teachers did not rely solely on the power of ideas to persuade; they relied on discipline to maintain order.
And no one was unfurling wacky, druggy banners.

Reviewing the school speech cases, he concludes:
I am afraid that our jurisprudence now says that students have a right to speak in schools except when they don’t—a standard continuously developed through litigation against local schools and their administrators. In my view, petitioners could prevail for a much simpler reason: As originally understood, the Constitution does not afford students a right to free speech in public schools.
He's ready to erase the precedent that began with Tinker (the case about students wearing black armbands to protest the war in Vietnam):
Tinker has undermined the traditional authority of teachers to maintain order in public schools. “Once a society that generally respected the authority of teachers, deferred to their judgment, and trusted them to act in the best interest of school children, we now accept defiance, disrespect, and disorder as daily occurrences in many of our public schools.” Dupre, Should Students Have Constitutional Rights? Keeping Order in the Public Schools, 65 Geo. Wash. L. Rev. 49, 50 (1996). We need look no further than this case for an example: Frederick asserts a constitutional right to utter at a school event what is either “[g]ibberish,” ante, at 7, or an open call to use illegal drugs. To elevate such impertinence to the status of constitutional protection would be farcical and would indeed be to “surrender control of the American public school system to public school students.” Tinker, supra, at 526 (Black, J., dissenting).
My, that's bracing. I'm a teacher. And I must confess that gave me a frisson. A perverse frisson?

But let's finally get around to reading what Justice Alito has to say. Joined by Justice Kennedy, this opinion represents the decisive fourth and fifth votes:
I join the opinion of the Court on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.” See post, at 13 (Stevens, J., dissenting)....

The public schools are invaluable and beneficent institutions, but they are, after all, organs of the State. When public school authorities regulate student speech, they act as agents of the State; they do not stand in the shoes of the students’ parents. It is a dangerous fiction to pretend that parents simply delegate their authority — including their authority to determine what their children may say and hear — to public school authorities. It is even more dangerous to assume that such a delegation of authority somehow strips public school authorities of their status as agents of the State. Most parents, realistically, have no choice but to send their children to a public school and little ability to influence what occurs in the school. It is therefore wrong to treat public school officials, for purposes relevant to the First Amendment , as if they were private, nongovernmental actors standing in loco parentis....

In most settings, the First Amendment strongly limits the government’s ability to suppress speech on the ground that it presents a threat of violence. See Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam). But due to the special features of the school environment, school officials must have greater authority to intervene before speech leads to violence. And, in most cases, Tinker’s “substantial disruption” standard permits school officials to step in before actual violence erupts. See 393 U. S., at 508–509.

Speech advocating illegal drug use poses a threat to student safety that is just as serious, if not always as immediately obvious. As we have recognized in the past and as the opinion of the Court today details, illegal drug use presents a grave and in many ways unique threat to the physical safety of students. I therefore conclude that the public schools may ban speech advocating illegal drug use. But I regard such regulation as standing at the far reaches of what the First Amendment permits. I join the opinion of the Court with the understanding that the opinion does not endorse any further extension.
So don't forget that the school is the state and children (and their parents) are pretty much compelled into submission. Ordinary, this would move us to respect your freedom of speech up to the point of "substantial disruption." But drugs are different. They're very, very dangerous. So the school can ban speech advocating their use -- that is, their illegal use. If you want to say it is bad that drugs are illegal... well, then that's different. And this case isn't saying anything about that.

ADDED: I'm correcting what was a garbled second to the last sentence. (I'd written "If you want to say something bad it is that drugs are illegal..." instead of "If you want to say it is bad that drugs are illegal...") I apologize for the confusion.

The Supreme Court finds that Freedom From Religion lacks standing

Justice Alito writes for the majority plurality in Hein v. Freedom From Religion, which was decided 5-4. I'm waiting to get access to the opinion and will write in more detail very soon, but here is my analysis of the case, written back when cert was granted:
This case raises the question of who may sue to enforce the Establishment Clause. The plaintiff (which filed the case in Madison, Wisconsin) relied on the status of its members as taxpayers to challenge the practice of holding conferences the White House to assist religious groups in applying for federal grants -- part of President Bush's Faith-Based and Community Initiative. Judge Shabaz dismissed the case on the ground that Congress hadn't earmarked the money to go to religion and therefore that the plaintiffs could not use the special doctrine -- articulated in Flast v. Cohen, 392 U.S. 83, (1968) -- that allows taxpayers to enforce the Establishment Clause. The Seventh Circuit reversed, with Judge Posner writing the opinion.

Here's Posner's opinion....
The Court decided in Flast that they should not stand in the way of challenges to "exercises of congressional power under the taxing and spending clauses of Art. I, § 8, of the Constitution," provided that the expenditure complained of is not just "an incidental expenditure of tax funds in the administration of an essentially regulatory statute" and that "the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8." 392 U.S. at 102-03. The Court found that this two-part test was satisfied by a challenge to the use of "the taxing and spending power . . . to favor one religion over another or to support religion in general." Id. at 103....

At argument the plaintiffs' counsel was unable to identify the appropriations that fund the conferences. The complaint does, however, allege that the conferences are funded by money derived from appropriations, which means from exercises of Congress's spending power rather than from, say, voluntary donations by private citizens. There is no suggestion that these are appropriations earmarked for these conferences, or for any other activities of the various Faith-Based and Community Initiatives programs, or for a statute pursuant to which the programs were created. The money must come from appropriations for the general administrative expenses, over which the President and other executive branch officials have a degree of discretionary power, of the departments that sponsor the conferences. Consolidated Appropriations Act, 2005, Pub. L. No. 108-447, 118 Stat. 2809, 2853, 3115-16, 3136, 3150, 3311-12; Department of Homeland Security Appropriations Act, 2005, Pub. L. No. 108-334, 118 Stat. 1298-99.

The difference, then, between this case on the one hand and Flast and Kendrick on the other is that the expenditures in those cases were pursuant to specific congressional grant programs, while in this case there is no statutory program, just the general "program" of appropriating some money to executive-branch departments without strings attached. The difference cannot be controlling. Suppose the Secretary of Homeland Security, who has unearmarked funds in his budget, decided to build a mosque and pay an Imam a salary to preach in it because the Secretary believed that federal financial assistance to Islam would reduce the likelihood of Islamist terrorism in the United States. No doubt so elaborate, so public, a subvention of religion would give rise to standing to sue on other grounds, just as in the St. Charles cross case; taxpayer standing in the hypothetical mosque case would not be essential to enabling a suit to be brought in federal court to challenge the violation of the establishment clause. But it would be too much of a paradox to recognize taxpayer standing only in cases in which the violation of the establishment clause was so slight or furtive that no other basis of standing could be found, and to deny it in the more serious cases.
Citing precedent, Posner identified the standing problem here as involving only the "prudential" limitations on federal court jurisdiction -- as opposed to the Article III constitutional limitations. Since "the prudential principles of standing, like other common law principles, are protean and mutable," Posner thereby freed himself to speak in practical terms and to avoid the Article III doctrine -- which has tightened up in the years since Flast and which has long made Flast seem like an anomalous safe harbor for Establishment Clause litigants.

Since the constitutionalized standing doctrine of the Burger and Rehnquist Courts presents a problem for those who want to argue that Flast was correctly decided, I should think it would be quite hard to argue nowadays that Flast ought to be broadened. Yet Flast is stare decisis, and Posner's practical reasoning is impressive. What if the Secretary of Homeland Security used general funds to build a mosque and pay an Imam?
The Court today has reversed the Seventh Circuit, but it did not overrule Flast, though -- according to SCOTUSblog, linked above -- two Justices wrote that it should be overruled.

ADDED: Here's the opinion. Justice Alito, joined only by Roberts and Kennedy, distinguishes Flast because the spending in that case was "a direct and unambiguous congressional mandate" which led the Court to find a "logical link" between the taxpayer status and "the type of legislative enactment attacked." In today's case, all Congress did was appropriate general funds to run the Executive Branch. The decision that the taxpayers challenged was entirely made within the Executive Branch:
It cannot be that every legal challenge to a discretionary Executive Branch action implicates the constitutionality of the underlying congressional appropriation. When a criminal defendant charges that a federal agent carried out an unreasonable search or seizure, we do not view that claim as an as-applied challenge to the constitutionality of the statute appropriating funds for the Federal Bureau of Investigation.
In the end of his opinion, Alito gives the reasons for declining to expand Flast. It has been confined over the years, and it is out of keeping with the values the Court has found important in its more recent standing cases. He considers the hypotheticals that Judge Posner had worried about, such as an Executive Branch decision to build a "house of worship." (Unlike Posner, he doesn't specify "mosque" or the building of any other particular religion.) His answer is that it hasn't happened, it's unlikely to happen, and, if it did happen, Congress could act. But I'd like to know what if Congress liked what the Executive Branch did and chose not to act? How would anyone have standing to sue about Congress's inaction? Alito only says is that the respondents "make no effort to show" to show that no one would have standing. (I note that if there were, say, a government mosque, you wouldn't need to be able to sue as a taxpayer. You could sue because you are in a position to see the building.)

Justice Kennedy concurs, expressing his concern about "the constant intrusion upon the executive realm that would result from granting taxpayer standing" here.

Justice Scalia, joined by Justice Thomas, says that the Court ought to overrule Flast. They do not join Alito's opinion, which, Scalia writes, is irrational, both in preserving Flast and in trying to distinguish it. In his view, the Court, in deciding whether a plaintiff has a good-enough injury to meet the requirements of Article III, needs to observe the difference between "Wallet Injury" and "Psychic Injury":
Psychic Injury... has nothing to do with the plaintiff’s tax liability. Instead, the injury consists of the taxpayer’s mental displeasure that money extracted from him is being spent in an unlawful manner. This shift in focus eliminates traceability and redressability problems. Psychic Injury is directly traceable to the improper use of taxpayer funds, and it is redressed when the improper use is enjoined, regardless of whether that injunction affects the taxpayer’s purse. Flast and the cases following its teaching have invoked a peculiarly restricted version of Psychic Injury, permitting taxpayer displeasure over unconstitutional spending to support standing only if the constitutional provision allegedly violated is a specific limitation on the taxing and spending power. Restricted or not, this conceptualizing of injury in fact in purely mental terms conflicts squarely with the familiar proposition that a plaintiff lacks a concrete and particularized injury when his only complaint is the generalized grievance that the law is being violated.
Flast treats what is really a Psychic Injury -- I'll follow Scalia's approach to capitalization -- as if it were a Wallet Injury. The plaintiffs aren't suing to get their money back, but because they feel wounded by what the government has done with it. If feeling bad about what the government has done is ever enough, why isn't it always enough?

MORE: Scalia takes a shot at Chief Justice Roberts in the end -- not by name, but by using one of his favorite words: "minimalism." Insisting that the question of overruling Flast must be faced, Scalia writes:
Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions that hold the sure promise of engendering further meaningless and disingenuous distinctions in the future. The rule of law is ill served by forcing lawyers and judges to make arguments that deaden the soul of the law, which is logic and reason.
And he has this to say about stare decisis:
Overruling prior precedents, even precedents as disreputable as Flast, is nevertheless a serious undertaking, and I understand the impulse to take a minimalist approach. But laying just claim to be honoring stare decisis requires more than beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive.
He ends with the acknowledgment that there are plenty of people who don't care very much if legal doctrine doesn't fit together logically:
My call for the imposition of logic and order upon this chaotic set of precedents will perhaps be met with the snappy epigram that “[t]he life of the law has not been logic: it has been experience.” O. Holmes, The Common Law 1 (1881).
"Snappy epigram." So much for the great Justice's grandest insight!
But what experience has shown is that Flast’s lack of a logical theoretical underpinning has rendered our taxpayer-standing doctrine such a jurisprudential disaster that our appellate judges do not know what to make of it.
Translation: Logic is practical.
And of course the case has engendered no reliance interests, not only because one does not arrange his affairs with an eye to standing, but also because there is no relying on the random and irrational. I can think of few cases less warranting of stare decisis respect.
So: Once the doctrine is sufficiently incoherent, the reliance ground for stare decisis is lost. Note to those who have a precedent they'd like overruled: Soften it up with exceptions and distinctions first. But judging from this case, that's only a technique that will work on Scalia and Thomas. The Roberts-Kennedy-Alito group will proceed by minimalism.

AND: Justice Souter, joined by Justices Stevens, Ginsburg, and Breyer, is like Scalia in that he can't see the reason for the distinction Alito is making. For him, however, this is a reason to extend Flast and find standing. Souter stresses the importance of denying tax money to religion. He quotes James Madison's Memorial and Remonstrance Against Religious Assessments: "the government in a free society may not 'force a citizen to contribute three pence only of his property for the support of any one establishment' of religion." Even a pittance matters:
The three pence implicates the conscience, and the injury from Government expenditures on religion is not accurately classified with the “Psychic Injury” that results whenever a congressional appropriation or executive expenditure raises hackles of disagreement with the policy supported.
He's looking at you, Scalia.

YET MORE: So the key to the outcome is the failure of Souter's argument to appeal to Justice Kennedy. You could say Souter (like Scalia) invokes general principle and logical coherence, and Kennedy is looking at the practical consequences. But Souter offers to draw the line at Establishment Clause challenges, and Kennedy seems to think he must reject taxpayer standing here in order to avoid judicial intrusion into all sorts of Executive Branch decisions, which might be challenged on various grounds. And look at this praise for executive independence (and confidentiality):
The Executive Branch should be free, as a general matter, to discover new ideas, to understand pressing public demands, and to find creative responses to address governmental concerns. The exchange of ideas between and among the State and Federal Governments and their manifold, diverse constituencies sustains a free society.... The burden of discovery to ascertain if relief is justified in these potentially innumerable cases would risk altering the free exchange of ideas and information.

Do you see what this means?

Orchid

I devise a test to see which presidential candidate cares most for the needs of older and disabled Americans.

Like many people, I can't see that well. Although I doubt that anyone would disagree that I have superior ability to perceive gestures and symbols in photographs and videos, I have trouble reading small print. So when I arrive at a website with small print, I hit "command + =" until I can read comfortably. Usually, this works. Sometimes it makes everything get out of line and become completely unreadable. What kind of campaign makes a website that instantly repels those of us with vision problems? Such callous disregard for our needs!

I'm writing about this now because I went to Barack Obama's website to try to find the full text (or video) of that religion-hijacking speech I just wrote about. His website fragments into chaos when I use my "command + =" approach. So let's test all major candidates.

Barack Obama: F. (Utter chaos.)

Hillary Clinton: C. (The various boxes remain fixed, some but not all of the text enlarges, and some enlarged text falls below the bottom line of its box.)

John Edwards: A. (The boxes stay put, and all the text enlarges. Terribly ugly website though, with way too much emphasis on fund-raising. )

Rudy Giuliani
: C. (Boxes stay fixed, some text enlarges, and text at the bottom overlaps with other text.)

John McCain
: B+. (Nearly everything enlarges properly.)

Mitt Romney
: B. (Things enlarge properly for the most part, but some words disappear under the boundaries. And let me add, though it's outside of the scope of this test, that I love the way the little figure of Mitt Romney strolls into the bottom right hand corner of the screen and starts haranguing me about what "some of our liberal friends" are doing.)

So which candidate cares most? Edwards! Least? Obama!

NOTE: I did this test on a MacBook, using both Safari and Firefox.

"It's becoming ever more clear that Rudy Giuliani suffers from John Kerry syndrome."

While Obama is speaking to religious groups that presumably already agree with him and using his religion to reinforce his politics, Giuliani has to explain to social conservatives why his religion and his politics don't match up.
Archbishop John J. Myers of Newark said: “I think he’s being illogical, as are all of those who take the stand that ‘I’m personally opposed to abortion but this is my public responsibility to permit it.’ To violate human life is always and everywhere wrong. In fact, we don’t think it’s a matter of church teaching, but a matter of the way God made the world, and it applies to everyone.”

The presidential campaign of John Kerry, a Democrat, suffered in 2004 when about a dozen of the nation’s more than 200 bishops declared that they would deny him communion because of his abortion stance....

“It’s becoming ever more clear that Rudy Giuliani suffers from John Kerry syndrome,” said Joseph Cella, president of Fidelis, a Catholic advocacy group in Chelsea, Mich. “It’s just a matter of time before more bishops step up, because he shares the identical position on abortion as John Kerry and Hillary Clinton.”
There's far more support out there for the merger of politics and religion than the separation of politics and religion. And yet, Giuliani is popular. So was Kerry (up to a point). What's different about Giuliani is that the disjunct between his religion and his politics is also a disjunct between his politics and his political party.

Is it "nice" to see Obama say "Faith got hijacked"?

John Amato writes that "It’s nice to see Obama say these words," but to me, it's entirely distracting to use the word "hijack," especially if the problem you're talking about has nothing to do with what we saw on September 11th but is simply the way some Christians take the conservative side on various issues and, failing to content themselves with mere belief, participate in politics. According to Obama, Christianity should move a person to political action -- Obama himself was speaking to a church congregation -- but only on the progressive side.
Mr. Obama used his 45-minute speech to recall the church’s and many others’ proud history of involvement in the American Revolution and the abolition and civil rights movements.

“But somehow, somewhere along the way, faith stopped being used to bring us together,” Mr. Obama said. “Faith started being used to drive us apart. Faith got hijacked.”

He attributed this partly to “the so-called leaders of the Christian right, who’ve been all too eager to exploit what divides us.” Yet he said that in traveling around the country he had sensed an “awakening” of an interfaith movement of “progressives.”
From these excerpts, Obama's famous rhetoric looks entirely self-contradictory. If he's trying to stimulate liberal Christians to political action, he too is using faith to "drive us apart."

ADDED: Here's the text to the whole speech. Excerpt:
But somehow, somewhere along the way, faith stopped being used to bring us together and started being used to drive us apart. It got hijacked. Part of it’s because of the so-called leaders of the Christian Right, who’ve been all too eager to exploit what divides us. At every opportunity, they’ve told evangelical Christians that Democrats disrespect their values and dislike their Church, while suggesting to the rest of the country that religious Americans care only about issues like abortion and gay marriage; school prayer and intelligent design. There was even a time when the Christian Coalition determined that its number one legislative priority was tax cuts for the rich. I don’t know what Bible they’re reading, but it doesn’t jibe with my version.

But I’m hopeful because I think there’s an awakening taking place in America. People are coming together around a simple truth – that we are all connected, that I am my brother’s keeper; I am my sister’s keeper.
So: People are "coming together around" the ideas espoused by the Democratic Party.
... Our conscience can’t rest so long as 37 million Americans are poor and forgotten by their leaders in Washington and by the media elites. We need to heed the biblical call to care for “the least of these” and lift the poor out of despair. That’s why I’ve been fighting to expand the Earned Income Tax Credit and the minimum wage. If you’re working forty hours a week, you shouldn’t be living in poverty. But we also know that government initiatives are not enough. Each of us in our own lives needs to do what we can to help the poor. And until we do, our conscience cannot rest.
Clearly, he is using religion as a basis for political commitment. How is this not "divisive" in almost exactly the same way as the Religious Right? I'm not saying it's wrong. We have two parties. We don't need to cure that division. In fact, political actors like Obama ought to define the division. But to simultaneously define and decry the division is incoherent. There's a sleight of hand in Obama's rhetoric that I'm going to make it my business to point out.

UPDATE: How does Andrew Sullivan -- who is so skeptical of "Christianists" -- see it?
[Obama] is Bush's natural successor, and threatens to make secular politics even more elusive in a fundamentalist age. He also threatens, if he pulls it off, to be a transformational candidate, turning American politics into a battleground primarily between those who believe the Gospels mandate an expansive welfare state and those who believe they mandate government's moral regulation of human birth, death and sex. For my part, I believe Jesus had no politics, let alone the big government politics of our time. And the attempt of both right and left to coopt his truth corrupts faith and politics simultaneously.
Ah, and Sullivan purports to know "his truth." At least he's got the humility -- or is wily enough to feign the humility -- to say "I believe." And he does take what I think is the best of the Christian positions: that it's Christian to keep religion out of politics. But the urge to gain political power is so strong, and religion is so effective. It's hard to get the candidates to leave it alone.

How strange!

Rose

To be blogging at midnight. It's not like me.

Over at Bloggingheads.... they're spluttering about me.

Rosa Brooks and Will Wilkinson bring up a subject and -- overcome, seemingly, with shyness -- can't quite go through with it.

The backlash against bottled water.

SF mayor Gavin Newsom is absolutely right:

June 24, 2007

Man with a 33-pound tumor...

... on his face. Horrible pictures at the link. The poor man -- who is now 31 -- has gone his whole life without treatment.

"Are the police going to take DNA samples from the sporran of every kilted supporter who walks into Hampden?"

A strange-sounding controversy in Scotland.

Do you know what this picture signifies?

Olbrich Garden

It signifies that I have completed the morning's blogging and intend to go outside.

"What makes Michael B. Nifong different" from all the many prosecutors who don't pay a harsh price for their abuses?

Asks Adam Liptak:
“The very same facts that made this case attractive to a prosecutor up for election and a huge publicity magnet — race, sex, class, lacrosse stars, a prominent university — also led to his undoing when the case collapsed and his conduct was scrutinized in and beyond North Carolina,” said Stephen M. Gillers, a law professor at New York University and the author of “Regulation of Lawyers: Problems of Law and Ethics.”...

Prosecutors say they seldom face discipline because conduct like Mr. Nifong’s in this sexual-assault case is exceptional.

“Nifong’s case is rarer than human rabies, which is one reason it is such huge news,” said Joshua Marquis, the district attorney in Clatsop County, Ore., and a vice president of the National District Attorneys Association. “The defense bar is piling on and trying to claim this is typical behavior.”...

“A prosecutor’s violation of the obligation to disclose favorable evidence accounts for more miscarriages of justice than any other type of malpractice, but is rarely sanctioned by the courts, and almost never by disciplinary bodies,” Bennett L. Gershman wrote in his treatise, “Prosecutorial Misconduct.”

Mr. Gershman, a former prosecutor in Manhattan who teaches law at Pace University, said the Nifong case was handled differently because of the publicity. “The fact that it resulted in national exposure,” he said, “had to have put the disciplinary body and the entire system of justice under the spotlight.”

“You have rogue prosecutors all over the country who have engaged in far, far more egregious misconduct, and in a pattern of cases,” he added. “And nothing happens.”
So did Nifong's case get out attention because his behavior was that much worse that the usual cases of prosecutorial misconduct or because of the "publicity magnet" factors? The best way to find out the answer to that question is to continue to pay attention to the abuses of prosecutors. If we can't maintain our attention long enough to see the extent of the problem, then we will know we cared because of the sports and the sex and the race and the elite university.

Is it wrong to tattoo your dog?

On the positive side: The dog was under anesthesia. On the negative side: It was a tattoo of a cat, and not just any cat -- Hello Kitty.

(From the anti-Hello Kitty blog, Hello Kitty Hell, found via Metafilter.)

(And take the Hello Kitty test, which is cute and which told me people must think I'm self-centered and evil.)

"I would like to think that Prof. Althouse is cultivating a troll garden, for fun."

"I hope she is having fun, anyway." Thanks. Actually, I am!

"The character I saw on the screen was flat -- nerdy, bland and boring."

Writes Asra Q. Nomani, about the new movie "A Mighty Heart," which tells the story of the murdered Wall Street Journal reporter Daniel Pearl -- or, rather, tells his wife's story and fades him into the background. Nomani, who worked with Daniel Pearl, is portrayed in the movie, and she says she can accept that she was turned into some sort of sidekick for the wife, but she "couldn't accept was that Danny himself had been cut from his own story" as the movie makers went about "creating a mega-star vehicle for Angelina Jolie, who plays Mariane, and promoting the glib and cliched idea that both Danny and Mariane were 'ordinary heroes.'"

But, after all that Hollywoodization, the movie is not doing well: " its per screen average was extremely low, indicating weak interest in this well-reviewed pic despite a ton of advance publicity featuring tabloid-favorite Jolie herself." But why did they think a movie focusing on the wife would do well? Many movies portray men of action and splice in scenes showing their wives agonizing about them. I'm thinking of "The Right Stuff" and various John Ford westerns. The scenes with the wives work -- if they work -- because they take up so little of the movie. The role of the suffering wife may take some heavy duty acting skill -- and I don't doubt Jolie has that -- but what -- other than adulation of the star -- is supposed to motivate us to become voyeurs to her ordeal?

That said, I can see the reviews are excellent, and I'm somewhat curious about how Mariane's story could be made into a successful feature-length narrative.

By the way, isn't it surprising to see a white actress playing a role in blackface?
[O]r does Jolie's color-bending turn ... herald a sea change in our racial consciousness? Is it a signal that, kumbaya, we really are the world, Hollywood truly is colorblind, may the best actress win? Does it matter if a visibly white actress plays a historical figure of (partial) African descent? If so, does it matter that Halle Berry is slated to play a real-life white politician?...

It will be interesting to see the reaction next year when we'll have the mixed-race Berry in "Class Act," playing the role of Tierney Cahill, a white schoolteacher whose sixth-grade class persuaded her to run for Congress in 2000. Still, we're not likely to see chocolate-hued Angela Bassett playing Hillary Rodham Clinton any time soon.
There are several issues here.

1. We may object to a white actor getting the role of a black character because it seems unfair to let white actors horn in on the relatively few great roles available to black actors. (If this is the objection, we should applaud when black actors get to play in whiteface.)

2. Second, we may simply have a moral objection to the use of makeup to vary skintone. We may think that because there is an evil history to blackface (and to pushing black persons to pass as white) that there should be a flat rule against it.

3. There is the more neutral question of whether an actor looks the part. But in this view, skintone really should be irrelevant, because makeup works perfectly to make the skin any color you want. Everything else about an actor is more important: physique, facial structure, voice. These things are harder to change, but, of course they can be changed too. There can be moral objections here too, such as when a beautiful actress puts on weight or wears a false nose and gets extra credit when in fact she is pushing a less attractive actress out of a leading role.