Scalia: Pres. must not have "uncontrolled mastery" over foreign affairs [cough]

The SCOTUS passport case that came down today (pdf here) reflected mostly a liberal-conservative split (Kennedy writing the majority opinion), with Thomas wandering off on his own.  At issue was a statutory provision requiring the State Dept., on request, to list Israel as the place of birth in a passport of a U.S. citizen born in Jerusalem.  The majority struck this down, saying it improperly constrained the President's power to recognize foreign governments and noting that the official executive-branch policy is (in the words of the syllabus, i.e. the opinon summary) that it "does not recognize any country as having sovereignty over Jerusalem."

Scalia, writing the main dissent (which was the only opinion I spent any time looking at), was indignant ("nonsense," logic worthy of "Mad Hatter") and professed to have enormous concern for the separation of powers and that the President should not have "uncontrolled mastery" over foreign policy.  Two things: first, Scalia insisted that recognition is "a type of legal act," not "a type of statement," which ignores or glosses over the fact that legal acts of recognition are themselves statements; second, one might be forgiven for wondering whether Scalia would have been so concerned about untrammeled presidential power in foreign affairs if this case had concerned something other than Israel and Jerusalem.

Note: Post edited slightly after initial posting.

That slippery word "liberty"

A perusal of the transcripts of the oral arguments in Tuesday's same-sex marriage case in the U.S. Supreme Court revealed several odd moments, and one of the oddest occurred at the very opening of John Bursch's argument for the state of Michigan. Here is how Bursch began:

This case isn't about how to define marriage. It's about who gets to decide that question.

Is it the people acting through the democratic process,

or is it the Federal courts?  And we're asking you to

affirm every individual's fundamental liberty interest

in deciding the meaning of marriage.

In the language of U.S. constitutional law, a "liberty interest" typically refers (doesn't it?) to a 'negative freedom' -- a freedom not to be interfered with -- not to a 'positive' right to "decide" something. At least, that has been my impression. From this standpoint, it's not surprising that Justice Sotomayor immediately jumped in and said to Bursch that a defeat for his client (the state of Michigan and its ban on same-sex marriage) would not take anyone's liberty away. 

But Bursch seemed not to be referring to the Fifth and Fourteenth Amendment language about not depriving anyone of liberty without due process. He meant something else. He was asserting that individuals have a "fundamental liberty interest in deciding the meaning of marriage." Can that possibly be right?

In a constitutional democracy (a phrase used by Justice Kagan in the course of the argument), individuals have no "fundamental liberty interest" in deciding policy questions. There is a general right to vote, of course, and there is a right to speak and assemble and to engage in other forms of individual and collective political action, but there is no right to have a direct say on every policy question that governments face, even one as (supposedly) significant as the definition of marriage. After Sotomayor's intervention, the asserted "fundamental liberty interest in deciding the meaning of marriage" pretty much vanished from the argument and the exchanges between the lawyer and the Justices; it may have been so strange-sounding that everyone tacitly let it drop.

Still, behind the odd language about a "fundamental liberty interest in deciding the meaning of marriage," Bursch did have a more intelligible (if not especially convincing) claim: that "the people acting  through the democratic process," not the federal courts, should decide on the definition of marriage. But it's not clear why that should be the case. As Kagan said (though not in these exact words), the Constitution puts limits both on the substantive decisions people can make and on what sorts of questions they get to decide.

No doubt these issues were explored exhaustively in the briefs that were filed in the case (none of which I've read), but the oral argument itself, which could conceivably have turned into a contentious seminar on democratic theory, was too choppy and disjointed to approach anything like that. Plato was mentioned (by Justice Alito at the outset), but the names of no other political theorists, classical or modern, came up in the argument. Maybe their ghosts were hovering around. Or maybe not.

Supreme Court to DC Circuit: keep right on ignoring us

Here.

"The freedom to live like it's 1804"

From a piece by Dahlia Lithwick on the health-care arguments: "...now we know the [Supreme Court] is worried about freedom: the freedom to live like it's 1804." See also E.J. Dionne here.

Why is the U.S. Senate (and one Senator in particular) so dismissive of the rights of terrorism suspects?

Update: The original post has been changed to correct an error (or two).


A long time ago in a galaxy far, far away...

Oops.

I meant: a long time ago, i.e. before 9/11, one could assume that an ideologically middle-of-the-roadish Democratic Senator would support the notion that those suspected of crimes, even of terrorist activity, had certain rights, including the right not to be detained indefinitely without trial.

No longer. The Senate yesterday kept in the defense authorization bill provisions on detention that Pres. Obama has threatened to veto. According to this NYT article:

The most disputed provision would require the government to place into military custody any suspected member of Al Qaeda or one of its allies connected to a plot against the United States or its allies. The provision would exempt American citizens, but would otherwise extend to arrests on United States soil. The executive branch could issue a waiver and keep such a prisoner in the civilian system.

A related provision would create a federal statute saying the government has the legal authority to keep people suspected of terrorism in military custody, indefinitely and without trial. It contains no exception for American citizens. It is intended to bolster the authorization to use military force against the perpetrators of the terrorist attacks of Sept. 11, 2001, which lawmakers enacted a decade ago.

Among the supporters of these provisions is Sen. Carl Levin, Democrat of Michigan and chairman of the Senate Armed Services Committee. According to an Agence-France Presse article which I saw at Raw Story (and which I'm not linking to because my browser is having trouble with it), Levin denied the provisions would harm civil liberties (!) and (the NYT story also has this) cited a Supreme Court ruling that a so-called enemy combatant, even if a U.S. citizen, may be held indefinitely without trial (this must be Hamdi v. Rumsfeld, but that case also said the detainee had to have the right to challenge his designation as an unlawful combatant).

Interestingly, the Pentagon itself is opposed to these provisions, according to the AFP piece, and the NYT says even some former Bush admin counterterrorism officials oppose them. Why is Levin supporting them? Why did he agree to their being part of the defense authorization package? He's not up for re-election until 2014, so immediate political considerations would not seem to be the answer. Has he always been this bad on these issues?

Money talks

George F. Will is passionate about the "right" of wealthy people to use their money to reinforce their privileged position in society. Of course, he doesn't put it quite that way. Applauding the five Supreme Court justices who just struck down Arizona's public financing statute, Will instead argues that money is speech and that any restrictions or burdens on such speech are unconstitutional. (Supreme Court precedent indicates that certain restrictions can be justified by an anti-corruption rationale but Will himself does not appear to agree with that, although he concedes it is the current state of the law.)

There's an old saying that money talks. Will and others who share his view take this literally and contend that writing a check is no different than getting up in a public meeting and moving one's vocal chords in such a way that intelligible words are produced and emitted. Writing a check, they believe, is no different than writing an article. It's all "speech." One might almost suspect Will secretly thinks that wealthy people are so inarticulate, so unable to make a case for the maintenance of their privilege by actually speaking, that depriving them of the ability to pour unlimited amounts of money into campaigns (if not through direct contributions to candidates, then through indirect third-party advertising) would sound the tocsin of a "U.S. Spring."

Grumpy observation of the day

I've been listening to some, not all, of the Kagan hearings. Today Kagan said (among many other things, of course) that a judge's or Justice's personal moral values should have no connection to her judging, and that constitutional adjudication is "law all the way down" (while acknowledging that many difficult legal questions arise on which reasonable judges can disagree about what the law requires, etc.). The notion that a judge's personal moral values have, and should have, absolutely no connection to his or her judging in any constitutional cases seems divorced from reality, and when an extremely intelligent person is put into the position of having to say something like this, perhaps the time has come to get rid of public confirmation hearings for Supreme Court nominees.

At least Kagan did say forthrightly that the original intent of the framers is only one factor that should be considered, and not always the most important or appropriate one, in deciding cases; she pointed out that many of the Supreme Court's free speech cases have interpreted the First Amendment in more expansive ways than the framers would have. That was a point well made -- and, incidentally, it served to highlight the absurdity of some assertions made by Senators about the framers. Sen. Cardin, for instance, said that the framers would have agreed with Brown v. Bd. of Education. This statement is either fairly pointless -- requiring one to ask what Madison, had he been alive in 1954, would have thought of the Brown decision -- or completely ahistorical. As anyone who has ever taken a junior high school civics class or a basic U.S. history course probably recalls, the Constitution tolerated not only segregation but also slavery (though it did provide for the eventual abolition of the slave trade), and it took the Civil War, and the post-Civil War amendments to the Constitution, to change that. The abolitionist William Lloyd Garrison viewed the original Constitution, because of its failure to confront slavery, as "a covenant with death and an agreement with hell." It's not necessary to endorse this precise language to see that the pre-Civil War Constitution was a deeply flawed document, something that should be kept in mind whenever people start blathering about the supposedly sacrosanct intent of the Framers.

Yoo on Kagan

John Yoo's critique of Elena Kagan's views on presidential power raises some rather odd questions, such as: What if Congress forbids the President from firing a subordinate? Come on, Prof. Yoo: How often has that happened in, say, the last 30 years?

Of rule, revenue, and raging violations of the Fourth Amendment

No one much likes to be taxed. Many Americans, however, actively hate to be taxed. The U.S. is, relatively speaking, an undertaxed society, especially since the Reagan years, and local, state, and federal governments must try to find ways to raise money that do not involve taxation. This is a problem even in good economic times, and in bad times an acute one. Here's a small example: Every two years I receive a notice in the mail telling me that I must take my car to a facility to have its emission system checked to make sure that it's not violating Maryland's emissions laws. I duly take my car to the facility, fork over fourteen dollars, watch while the technician does something -- and the 'something', to someone's credit, seems to have gotten quicker and more streamlined over the years -- and am handed a piece of paper saying that my car has passed the test. What does this accomplish? Well, I suppose it gives a number (albeit a relatively small number) of people jobs, and I am, all things weighed, definitely in favor of that. It also may make a very marginal contribution to cleaner air, but this is doubtful it seems to me, since how many owners of polluting vehicles are going to obey the notice? -- more than likely they're just going to rip it up. That leaves the real purpose of the exercise: to raise money for the local and perhaps the state governments, and to raise it in a way that does not involve taxation. (I think I'd rather pay fourteen extra dollars in tax every two years and be spared the time and inconvenience of taking my car in for the emissions check, but my preference is presumably not widely shared.)

This is all by way of preface to expressing some -- well, outrage seems the appropriate word -- at seeing tonight's NewsHour report on so-called DUI checkpoints in California. I say "so-called" because the real purpose of these checkpoints, the report made clear, is to find people driving without licenses, impound their cars for thirty days, and then either collect the fines that people pay to retrieve them or, if no one retrieves the vehicle, auction it off. The result is that millions of dollars flow into local government coffers, specifically the coffers of the local police agencies (with a chunk going to the towing companies). Never mind that the people whose cars are impounded are overwhelmingly undocumented immigrants (who often need their cars in the most imperative sense as their survival may depend on driving to a job); and never mind that the U.S. Court of Appeals for the Ninth Circuit has already ruled that the warrantless impoundment of cars under these circumstances is unconstitutional. (The state's legal powers-that-be claim to be waiting for another ruling from the Ninth Circuit but I couldn't see anything unclear about the first one, judging from this report.) After all, the Ninth Circuit ruling is just a piece of paper to those who want to ignore it, and it would be hard as a practical matter (though not impossible, I think) to hold the entire police force of a city in contempt of court.

Now there are probably good reasons from a safety standpoint to get unlicensed drivers off the road, as a Berkeley professor suggested at the outset of the piece. But it's not clear that the impoundments accomplish this. One person interviewed said that when his car was impounded he just went out and bought another. He knew he was doing something illegal by driving unlicensed but he needed a car to get to his construction job. (Presumably some people in that situation can't afford to buy another car, but there were no statistics presented on that. And if you search hard, you can find some pretty inexpensive cars out there. How about driving unlicensed and in a clunker? What gain for safety then?)

If you want to reduce unlicensed driving, do it openly, not under the cover of a DUI check. If you want to reduce drunk driving, how about raising the age for a driver's license? If you want to raise revenue, do it the old-fashioned way, however unpopular. Don't have local police run ostensible DUI checkpoints whose real aim is to find undocumented immigrants driving without licenses and impound their cars for thirty days before selling them to the highest bidder. These checkpoints are discriminatory. They are unconstitutional. They are one small but not insignificant result of a society too immature, and a political system too dysfunctional, to fund essential public services in a conscionable, sensible way: by paying for them directly. The country of course is in the midst of an economic crisis and a recession, but this story underscores a more permanent problem in the U.S.: the survival of a me-first, devil-take-the-hindmost mentality that may have been in some ways beneficial during the first century or so of the republic's existence but became counterproductive in the twentieth century and is unqualifiedly disastrous in the twenty-first.

The campaign finance case (Citizens United v. FEC)

The U.S. Supreme Court’s 5-4 decision last month in Citizens United v. Federal Election Commission is an example of judging divorced from reality. To mention at the outset something that has occasionally gotten lost, this case was not about direct contributions to candidates by corporations: such contributions remain illegal, although corporations’ PACs (political action committees) may contribute to candidates. Rather, Citizens United had to do with advertising by corporations that endorses or advocates the election of a particular candidate, either directly (vote for X) or by criticizing a candidate’s opponent (Y is no good; therefore [implied message]: vote for X). The decision basically says that it is unconstitutional to prohibit corporations from financing such ads with money in their general treasuries. The main reason? According to Justice Kennedy’s majority opinion, corporations are speakers and money is speech, and the statutory provisions in question violate the First Amendment by "banning" political speech. As the dissent argues, "ban" is a misnomer since the law at issue deals with one method of financing speech; corporations have been and still are free to form PACs, solicit contributions to them from shareholders, employees and their family members, and use that money to fund their electoral communications. The majority pooh-poohed this point.

In overturning a 1990 decision, Austin v. Michigan Chamber of Commerce, which held that the government has a compelling interest in checking the "corrosive and distorting effects" of unlimited corporate spending in election campaigns, the Citizens United majority purports to regard ‘the marketplace of ideas’ as incorruptible and inherently self-correcting. In the majority’s view, speakers -- defined to include corporations -- speak; the electorate then separates the wheat from the chaff, the true from the false, irrespective of how much one side’s voice is amplified by the money at its disposal. That the electoral process almost certainly does not and almost certainly will not work in this way in a polity and society where corporations have a privileged position -- and where their organizational attributes allow them to amplify their influence on the electoral process -- is reasonably obvious, or so one would have thought, to anyone who has not been living under a rock.

(Note: At the oral re-argument of the case last September, which I heard broadcast on C-Span radio the day the decision came down, Solicitor General Elena Kagan, arguing for the government, declined to offer a strong defense of the "antidistortion rationale" of Austin, though she did of course urge the Court not to overrule the case. The government, it’s now clear, was going to lose regardless of who said what at oral argument, but Chief Justice Roberts in his concurrence made a point of quoting Kagan’s statement that Austin was not the clearest opinion (she either said "not the most pellucid" [which is how I had heard it on the taped broadcast] or "not the most lucid" [which is how Roberts quotes her from the transcript].)

As Justice Stevens’s dissent points out, the Citizens United decision will greatly advantage corporations vis-à-vis political parties, since parties are prohibited from raising and spending "soft money." As the dissent also points out, the majority failed to understand that the regulations at issue did not pit certain interests having nothing to do with the First Amendment against the claims of free speech. Rather, the questions raised by limits on corporate money in elections bring one kind of First Amendment interest into tension or conflict with another kind. Since I can't say this better than Stevens did in his dissent, I will quote him:

"All of the majority’s theoretical arguments turn on a proposition with undeniable surface appeal but little grounding in evidence or experience, 'that there is no such thing as too much speech,' Austin, 494 U. S., at 695 (Scalia, J., dissenting) [footnote omitted--LFC]. If individuals in our society had infinite free time to listen to and contemplate every last bit of speech uttered by anyone, anywhere; and if broadcast advertisements had no special ability to influence elections apart from the merits of their arguments (to the extent they make any); and if legislators always operated with nothing less than perfect virtue; then I suppose the majority’s premise would be sound. In the real world, we have seen, corporate domination of the airwaves prior to an election may decrease the average listener’s exposure to relevant viewpoints, and it may diminish citizens’ willingness and capacity to participate in the democratic process.

"None of this is to suggest that corporations can or should be denied an opportunity to participate in election campaigns…or to deny that some corporate speech may contribute significantly to public debate. What it shows, however, is that Austin’s 'concern about corporate domination of the political process,' 494 U. S., at 659, reflects more than a concern to protect governmental interests outside of the First Amendment. It also reflects a concern to facilitate First Amendment values by preserving some breathing room around the electoral 'marketplace' of ideas….

The majority seems oblivious to the simple truth that laws such as §203 do not merely pit the anticorruption interest against the First Amendment, but also pit competing First Amendment values against each other. There are, to be sure, serious concerns with any effort to balance the First Amendment rights of speakers against the First Amendment rights of listeners. But when the speakers in question are not real people and when the appeal to 'First Amendment principles' depends almost entirely on the listeners’ perspective [this is a reference to the majority’s argument that the regulations deprive listeners of valuable information--LFC] it becomes necessary to consider how listeners will actually be affected."

I also urge those interested to read the powerful concluding section of the dissent.

Yes we can -- well, maybe

"Let's end tax breaks for corporations that ship jobs overseas." Pres. Obama said this numerous times during the '08 campaign. The line reappeared in his State of the Union speech, which shows how politically difficult it is to change this part of the tax code. Actually, right now it's politically difficult to do much of anything, at least in terms of legislation. The Founders, we are continually told, wanted a constrained, self-checking government, but this is ridiculous.

On foreign policy and trade policy, the State of the Union speech broke little new ground: the U.S. needs to export more - no surprise; trade should be on a level field - no surprise; we are in danger of being overtaken in technological innovation by other countries - no surprise. It was nice, however, to hear Obama reaffirm his commitment to a nuclear-free world. He also mentioned repealing the don't-ask-don't-tell policy (a line noticeably not applauded by the Joint Chiefs of Staff).

As for the rest of the speech, I thought Obama struck a number of reasonably good notes. The focus on unemployment was both substantively and politically necessary, as was the emphasis on measures to help small businesses borrow and to encourage them to hire. The spending freeze (not to take effect until 2011, since "that's the way budgeting works") was also something he probably did not have much choice, at least politically speaking, but to propose.

Moreover, it was entirely appropriate, despite what some have said, for Obama to criticize the Supreme Court's ruling in Citizens United v. Federal Election Commission, the campaign finance case that came down last month. I've read parts of the opinions, which taken together total more than 180 pages, and I had thought about putting up a separate post about the case, but I probably won't. I'm guessing readers of this blog are not that interested in the fine points of First Amendment law. Suffice it to say that the decision is pretty awful. Justice Alito's reaction to Obama's remarks during the speech, and the comment the reaction has occasioned, is a tempest in a teapot.

Obama's appeal to rise above partisanship and divisiveness was both eloquent and expected, though whether it will fall on receptive ears remains doubtful. "The politician looks to the next election, the statesman to the next generation": I seem to recall this line from an essay -- I don't remember which one -- by John Rawls, who was presumably repeating a distinction that had been drawn before. How many of the politicians in Congress are statesmen or stateswomen in this sense? Hmm...

Memo to whom it may concern: the "art community" has no "special rights" under the First Amendment

A poster at Reason opines that artists have a duty to question authority because the First Amendment gives the art community, as "counterpart" to the press, special rights (or, in other words, singles out artists for specific attention).

Um, no. The First Amendment, in relevant part, reads: "Congress shall make no law...abridging the freedom of speech, or of the press...."

Nothing about special rights for artists, and as far as I'm aware the Supreme Court has not interpreted the First Amendment as giving artistic expression any higher level of protection than that afforded to speech generally. Law school was a long time ago, but my recollection is that speech deemed commercial can be somewhat more easily regulated than political speech, and that artistic and literary expression is also (with the exception for obscenity) at the core of the First Amendment. But special rights for artists, because they are "counterparts" of members of the press? No. You can still argue, of course, that artists have a duty to criticize those in power, but any such duty cannot convincingly be rooted in the U.S. Constitution or the system of checks and balances. The press as an intended check on government power, yes. Artists as an intended check on government power -- I don't think so.

[Hat tip: The House of Substance]

The attack on "foreign law"

Today's Judiciary Committee hearings on the Sotomayor nomination featured a lot of discussion about the supposed evils of making reference to international law and the law of other countries in constitutional adjudication. At the end of today's proceedings, two conservative law professors delivered statements on this issue; I may have occasion to say more about those statements after I've had a chance to read them (or re-listen to them). Regrettably, the Democrats missed an opportunity to come to the defense, so to speak, of international law and foreign law. They did not invite a witness to counter specifically the testimony of the two law professors I referred to. None of this will affect Sotomayor's confirmation prospects, of course, but it may affect the broader debate on this topic.

A tangled web

Anyone who thinks the U.S. Supreme Court's Miranda-related jurisprudence (for lack of a better phrase) has not become a convoluted area should take a look at yesterday's opinions in Montejo v. Louisiana (5-4; Scalia wrote the majority opinion, Stevens the dissent).

Here is a case where the defendant apparently confessed to a murder under interrogation, having (again apparently) waived his rights to counsel and to remain silent, then was appointed a lawyer by the court at an arraignment, then later was read his Miranda rights again by police officers and ended up riding in a car with them and writing an incriminating letter on the way. How confusing it must be (as the dissent pointed out) to be given a lawyer in the morning and then 'mirandized' again in the afternoon. One might imagine the accused thinking: "Why are you saying I can request a lawyer? The court just appointed a lawyer for me. I already have a lawyer."

The Supreme Court in Montejo was mostly absorbed, as is not infrequently the case, with doctrinal disputes and acrobatics and parsing the meaning of phrases in precedents and dueling footnotes (and see Alito's rather bitter and personal concurring opinion), and thus left mostly unanswered, as far as I could tell, such practical questions as: How much did the accused understand of what was being said to him? How carefully were his rights read and/or explained? Beneath the somewhat arcane arguments (to those not used to them) about the proper application of stare decisis and the interaction of the Fifth and Sixth Amendments, the real question is: Under what circumstances can a defendant be said to have validly waived his rights? And, as in all such cases, where should the balance be struck between the defendant's rights and the societal interest in solving crimes (and solving them fairly and not by convicting the wrong person)?

[For a clearer explanation of the legal issues involved here, see my remarks in the comments. The key issue is whether the police can initiate questioning of someone who has a court-appointed lawyer without the lawyer being there.]

At a time when the criminal justice -- or if you prefer, criminal "justice" -- system continues to be plagued by very deep flaws, it is cases like these that show how important it is to have at least a few justices on the Supreme Court who have had at least some exposure to the world outside of middle-class (or upper-class) life and elite institutions and who therefore presumably can grasp in the deepest sense that actual lives are often at issue, not only logic and doctrinal niceties. ("The life of the law has not been logic but experience," as Holmes famously put it.) Sotomayor's background and personal story augur well in that respect. But then so too, arguably, did Clarence Thomas's story, and we all know how that turned out. Not of course that I'm suggesting any similarity in views between Thomas and Sotomayor -- just raising a little cautionary flag about inferring too much from someone's life history. That said, she seems to be a good choice and should be confirmed fairly easily.

'Recruitment tool'

One of the points at issue in the speeches today of Pres. Obama and former VP Cheney is whether Guantanamo Bay, use of "enhanced interrogation techniques" and so forth have been a "recruitment tool" for jihadists. Cheney, in particular, ridiculed the idea.

Actually, no one really knows whether or to what extent Guantanamo has been a "recruitment tool," because people signing up for terrorist activity do not usually write neat little explanations of their motives. In some cases, their motives may not be entirely clear even to themselves. (How many of us understand exactly why we do what we do?) My hunch is that civilian casualties from U.S./NATO operations in Afghanistan, as well as civilian casualties in Pakistan, are more powerful "recruitment tools" than Guantanamo Bay has been.

The main case for closing Guantanamo is not that it is a recruitment tool but that holding people indefinitely or for very long periods in a kind of legal limbo violates basic principles of the American legal and constitutional order, and jettisoning those principles here is unnecessary. Practically, the situation is a "mess," as Obama said today, and cleaning it up is not going to be easy. And with Democratic senators unwilling to show political courage in this context, the problem becomes that much more difficult.

Should Burris be seated?

Should Roland Burris, appointed by Illinois Gov. Blagojevich to fill Pres.-elect Obama's Senate seat, be permitted to take his seat by the Senate? From a constitutional standpoint, the answer would appear to be yes. Fordham law professor Abner Greene, speaking on the NewsHour this evening, pointed out that the Senate's power under Art.I Sec.5 to be "the judge of the elections, returns and qualifications of its own members" is fairly weak support for refusing to seat Burris; but it's the only constitutional support available, given that Burris's appointment conforms to the requirements of the 17th Amendment.

Whether this line of reasoning will prove decisive with the members of the Senate Democratic caucus is doubtful. But even from a political and fairness angle, there's a case to be made for seating him. After all, it's not Burris's fault that Blagojevich is going to be indicted, and there's no evidence that Burris was involved in any alleged wrongdoing. And having a full complement of senators from Illinois could only help matters in the early days of the Obama legislative agenda.

D. Kaiser on habeas

For those interested in the recent Supreme Court habeas corpus decision, David Kaiser at History Unfolding has a quite good post summarizing the decision; he thinks Kennedy's majority opinion may come to be seen as a landmark. He also has a postscript about Scalia's dissent.

Question for Roberts and Scalia

Does the right hand know what the other right hand is doing?

This question presented itself as I half-skimmed, half-glanced my way through the 134 pages of Supreme Court opinions in the latest detainee/habeas corpus case, Boumediene v. Bush. In particular, the question arose when I got to the dissents. There are two: one written by Chief Justice Roberts, which Justices Scalia, Alito, and Thomas joined; and one written by Scalia, which Roberts, Alito, and Thomas joined. There's just one little problem: the dissents start out by saying opposite things. Roberts says the majority opinion will have only a "modest practical impact" (or words to that effect) on the detainees' situation, so the case is less about the detainees, he asserts, than about a struggle over which branch of government gets to set policy in this area.

Although Scalia agrees that there is a struggle among the branches and indeed accuses the majority of holding an "inflated notion of judicial supremacy," Scalia, by contrast with Roberts, begins his dissent by declaring that the majority opinion will have "disastrous consequences." It will lead, he predicts, to more detainees being released than otherwise would occur, and some of these may return to the battlefield (as has happened in some previous cases where the military itself decided to release detainees).

"Modest practical impact" or "disastrous consequences"? Which is it, guys? You can't have it both ways.

p.s. No doubt someone else has already made this point, but I have read little commentary on the opinions, so any copy-cat-ism here is inadvertent.