"The Only Supreme Court Editorial You Need To Read"

I was searching the archives of this blog, when I found this oldie you might enjoy.

Over at the Volokh Conspiracy, Orin Kerr has this very efficient and very funny model editorial complete with fill-in-the-blanks for liberals and conservatives to use:

The Only Supreme Court Editorial You Need to Read:

Lots of editorials and opinion pieces are being penned about the future of the Supreme Court these days, and it occurs to me that all of this writing is terribly inefficient. We could condense most of the different editorials and opinion pieces into a single essay, with one caveat: you just need to insert the proper words depending on whether the authors are liberal or conservative. Here is that single essay, with the bracketed sections containing the word or phrase to insert for liberal authors followed after the slash by the word or phrase to insert for conservative authors.

The Future of the Supreme Court
July 7, 2005
The Washington [Post/Times]

The retirement of Sandra Day O'Connor presents a major opportunity for President George W. Bush. It is essential to our Nation that he choose her replacement wisely.

Although nominated by Ronald Reagan, Justice O'Connor turned out to be surprisingly [enlightened/unprincipled]. Her jurisprudence was [pragmatic/random], which tended to frustrate [conservative wingnuts/believers in a written Constitution]. While Justices Scalia and Thomas voted to [turn back the clock/ follow the Constitution], Justice O'Connor frequently voted in a way that was quite [reasonable/result-oriented].

News reports speculate that President Bush may nominate Attorney General Alberto Gonzales, Jr. to replace Justice O'Connor. If so, it will be a major [relief/disappointment]. While Gonzales has a proven record of loyalty to the President, he does not appear to be a [nut/conservative]. He [may not/ may] vote the right way in many cases, but [he is as good a nominee as we're likely to get/ I doubt it].

Other individuals often named as possible nominees to replace Justice O'Connor are much [worse/better]. Nominating an [extreme/actual] conservative like J. Michael Luttig would signal to all Americans that the Constitution is [on life support/back].

The conservative base has made its position loud and clear: it wants Bush to nominate a strong conservative to the Supreme Court. He should [ignore/listen to] them. The stakes are too high to do otherwise. The fate of our Constitution, and our Nation, hangs in the balance.

Analyzing "Slippery Slope" Arguments

From Volokh Blog:

Slippery Slopes in 10 Pages:

Ward Farnsworth's The Legal Analyst includes a chapter on slippery slopes that's generally based on my Mechanisms of the
Slippery Slope article.

As is usually the case with Ward's work, it's extremely well written, and I can't imagine a better 10 pages on the subject. If you don't want to read my whole law review article (and who really wants to read whole law review articles?), read Ward's
10 pages instead -- many thanks to Ward and his publisher for letting me put the chapter on my site -- or, better yet, read his
whole book.

I have heard good things about this book and I strongly recommend you read the linked excerpt on "slippery slopes" an issue that often arises in Constitutional Law (an EC version is "If we allow Nativity displays, we take a step on the slippery slope toward theocracy").

Nebraska "Judge orders prison to meet religious diet needs"

From the National Paper of Record:

Tecumseh State Correctional Institution officials and a Muslim inmate are attempting to revise food service at the prison so the inmate can have access to kosher foods.

U.S. District Judge Joseph F. Bataillon ordered the revision after the inmate, Mohamed El-Tabech, sued corrections officials under the U.S. Constitution and the Religious Land Use and Institutional Persons Act.

The 2000 act prohibits governments from imposing a substantial burden on inmates’ religious practices without a “compelling governmental interest” and unless the burden is the least restrictive to achieve that interest.

El-Tabech said in the 2004 lawsuit that prison officials were violating his rights under the Constitution and the act by denying him access to a kosher diet and interfering with his prayer schedule. El-Tabech, 49, also claimed he needed to shower daily in keeping with beliefs he based on the Quran. He is currently permitted three or four showers a week.

Bataillon held a non-jury trial on the lawsuit was in
Omaha in May.

Attorneys for the state argued El-Tabech’s diet requests would
increase the costs of food and food preparation, and might create a perception of favoritism among other inmates. In addition, the state said that El-Tabech’s food request, if granted by the judge, could trigger an increase in religious
diet requests from other inmates.

Bataillon said in an order last month that the state failed to offer any evidence about the economic consequences of providing
inmates kosher meals or kosher items at the canteen.

The Nebraska Department of Correctional Services does not provide a kosher food option for any inmates at present, the judge said in the order.

Prisoners can abstain from eating religiously prohibited foods and still maintain a nutritionally adequate diet, and they can order items through the canteen, although, Bataillon wrote, “It is not possible to know what foods are kosher before ordering.”

The judge also noted that the defendants are already furnishing prisoners kosher meals at Ramadan “without incident or impact.”

“According to evidence already adduced at trial, ready alternatives already exist to satisfy El-Tabech’s dietary requirements at a (minimal) cost to the prison,” he wrote.

Bataillon gave the state and El-Tabech 60 days from July 17 to decide on the feasibility of modifying the canteen list to indicate kosher items and offering El-Tabech or any other inmates prepackaged kosher meals.

In addition, the judge ordered the parties to consider offering
inmates kosher foods — boiled eggs, uncut or unpeeled fruits and vegetables, for
example — that are already available in the kitchen.

Bataillon rejected El-Tabech’s request for daily showers, writing that the sink in his cell was a “reasonable alternative” on non-shower days.

The judge ordered that El-Tabech’s prayer schedule be posted so that guards can modify activities to reduce disturbances to El-Tabech’s prayer. Bataillon said he did not expect the Tecumseh to alter prison schedules to accommodate El-Tabech’s prayers, however.

Attorneys for El-Tabech could not be reached for comment Thursday.

Holley Hatt, a spokeswoman for Attorney General Jon Bruning, said she expected the prison to meet the judge’s deadline.

El-Tabech, formerly of Lincoln, began serving a life sentence in 1985 for the murder of his wife, Lynn El-Tabech.

Knino Knows

Justice Scalia on judicial hegemony. Link.

Here is an excerpt:

U.S. Supreme Court Justice Antonin Scalia railed against the era of the "judge-moralist," saying judges are no better qualified than "Joe Sixpack" to decide moral questions such as abortion and gay marriage.

"Anyone who thinks the country's most prominent lawyers reflect the views of the people needs a reality check," he said during a speech to New England School of Law students and faculty at a Law Day banquet on Wednesday night.

The 70-year-old justice said the public, through elected Legislatures -- not the courts -- should decide watershed questions such as the legality of abortion.

Scalia decried his own court's recent overturning of a state anti-sodomy law, joking that he personally believes "sexual orgies eliminate tension and ought to be encouraged," but said a panel of judges is not inherently qualified to determine the morality of such behavior.

He pointed to the granting of voting rights to women in 1920 through a constitutional amendment as the proper way for a democracy to fundamentally change its laws.

"Judicial hegemony" has replaced the public's right to decide important moral questions, he said. Instead, he said, politics has been injected in large doses to the process of nominating and confirming federal judges.

I think Scalia has this about right. Despite the Court's complaint about the majority imposing its morality through laws enacted in the democratic process, the Justices are indeed imposing their moral views when they decide cases like Roe and Lawrence. There is no reason to think that a body of unelected lawyers has a better functioning moral compass than the People who are supposed to rule in a free society.

I also appreciate Scalia's willingness to speak up at a time when some of his colleagues on the Court are, like Archie Bunker, trying to stifle criticism of the Court and judicial activism in the name of "judicial independence." Wasn't it Franklin who said what makes America special is "here the People rule"?

I can't help it! Here is another excerpt:

"He said code words such as "mainstream" and "moderate" are now used to describe liberal judicial nominees.

"What is a moderate interpretation of (the Constitution)? Halfway between what it says and halfway between what you want it to say?" he said."

"Make Sure That There Is Nothing in the Religious Upbringing or Teaching That the Minor Child Is Exposed to That Can Be Considered Homophobic":

Here is a post at the Volokh blog that deals with whether a parent's religious views about homosexuality can be taken into account in a custody decision.

Any thoughts?

Interesting EC Standing Case

From the Religion Clause blog. Here is the report:

By a vote of 8-7, the U.S. Fifth Circuit Court of Appeals yesterday,
sitting en banc, held that plaintiffs lacked standing to challenge Tangipahoa
Parish School Board's practice of opening its meetings with a prayer. In Doe v. Tangipahoa Parish School Board, (5th Cir., July 25, 2007), the majority, in an opinion by Chief Judge Edith Jones, said that there was no evidence in the record that plaintiffs ever attended a school board meeting where a prayer like those challenged was recited.

In a "special concurrence", Judge Moss was unusually critical of the
Supreme Court. He wrote:

The Supreme Court cannot continue to speak out of
both sides of its mouth if it intends to provide real guidance to federal courts.... [I]t cannot continue to hold expressly that the injury in fact
requirement is no different for Establishment Clause cases, while it implicitly assumes standing in cases where the alleged injury, in a non-Establishment Clause case, would not get the plaintiff into the courthouse. This double standard must be corrected because ... it opens the courts' doors to a group of plaintiffs who have no complaint other than they dislike any government reference to God.

Dissenters, in two separate opinions, argued that the trial court's
pre-trial order makes clear that plaintiffs' attendance at board meetings was not a contested issue and that defendants impliedly admitted those facts. 2theadvocate reports on the decision. The splintered 3-judge panel decision in the case was discussed in a previous posting.

Harry Potter and the Half-Crazed Bureaucracy

From my other class blog, Hooray Property.

Obviously, this is not an assignment, just some fun.

"No Religious Liberty Please, We're French"

French Move To Reinforce Secular State

Here is the report:

A panel appointed by the French government has produced a charter that aims to keep public institutions, including hospitals, the armed forces, schools and government offices, free from religious influence.

The document comes in the wake of an assault on a doctor by a young Muslim who objected to his wife being examined by a man when she developed complications after childbirth.

The High Council on Integration is recommending to Prime Minister Dominique de Villepin that rules protecting the nation’s secular society be even more strictly enforced. The Council is recommending that France recognise a proposed charter that would clearly indicate how church and state should be kept separate in such public spaces. The proposed charter on secular life attempts “to define the rights and obligations of public servants as well as those of users of such
government-provided services”.Plans to draw the line on what is considered unacceptable behaviour in hospitals – behaviour that put patients at risk – were first raised three years ago during the debate over Muslim head scarves. The then-Prime Minister Jean-Pierre Raffarin said that hospitals would be the next target.

Male doctors, particularly in maternity wards, say they are increasingly subject to insults and physical attacks. These are perpetrated mostly by men opposed to nudity or physical contact with their wives and daughters. The conviction last week of Fouhad BenMoussa highlighted the issue. He had attacked
Dr Jean-Francois Oury, the head of the maternity ward of Robert Debre Hospital in Paris after the doctor manually examined his wife, who had hemorrhaged after giving birth.

“In my religion, a man doesn’t touch a woman,” Ben Moussa screamed, as he slapped and pulled the doctor, according to the testimony. In court, Ben Moussa then claimed his real motivation was modesty, not religion. He was sentenced to a six-month jail term which can be served in part at home.

“I think the Oury case was the straw that broke the camel’s back,” said Emile Darai, secretary general of the National Congress of French Gynecologists and Obstetricians. The group, unusually, issued a statement in October asking, “Do gynecologists and obstetricians now need police protection to practice?

”The statement affirmed that male and female doctors would treat patients “whatever their sex,” and that a woman has the freedom “to determine contraception, abortion, sterilisation without the permission of her husband.

”The recommendation affirms the rights of patients, but stresses the need for a “balanced approach.” The report said there was no need to legislate on the issue, but highlighted that respect for the functioning of the hospital was vital. It suggested a charter laying out the constitutionally guaranteed principle of secularism be adopted and that pertinent sections be put on display at the relevant institutions.

The charter will remind government-agency employees that while the “freedom of conscience is guaranteed” while they’re on the job, the “constitutional principle of secularism requires [of all citizens] the obligation of [maintaining] strict neutrality” and “equal treatment of all individuals” and the “respect of the freedom of conscience” of others. In other words, no religious proselytising at work, even in subtle ways.

The proposed charter adds that, when a public servant “manifests” his or her “religious convictions during the carrying-out of his or her functions,” in effect that employee’s behaviour “constitutes a dereliction of his or her obligations."

Similarly, the text of the proposed charter also reminds those who use
government agencies’ services that they “must abstain from all forms of proselytising” if or when they avail themselves of such services.

The proposed charter advises members of the public to be cooperative when public servants need to verify a person’s identity. The clear implication of this is that anyone who has their head or face covered will have to uncover if identification is required. The charter would also be distributed at key events, including ceremonies where immigrants are granted French citizenship.

In an editorial, Le Monde says that it is useful to reaffirm the basic
principles of the republican agreement that all French citizens are supposed to share in, which establishes their secular way of life. But “to be obliged to codify some of the rules of communal life in society that should come naturally in a document that comes from the state [itself] – even if it is not a law – reveals the limits of integration policies in a country that [has become] more and more multicultural.

”The fact that the High Council on Integration’s proposed charter has
emerged at all, Le Monde concludes, suggests “a failure of ‘living together,’ a sort of civic fracture that a charter, however useful, will not be enough to diminish."

Hat tip Religion Clause blog

School Race Cases

From How Appealing:

"And finally, "SCOTUSblog" reports that "Chief announces schools cases. Decided jointly. Plans reversed. 5-4, Kennedy concurs in judgment." Denniston's post on the decision is titled "Court strikes down school integration plans." Therein, he writes that "Chief Justice John G. Roberts, Jr., wrote the majority opinion in the combined cases. Justice Anthony M. Kennedy did not join all of the majority opinion, but joined in the result." In early news coverage, The Associated Press reports that "Supreme Court Rejects School Race Plans." You can access the decision in Parents Involved in Community Schools v. Seattle School District, No. 05-908, decided together with Meredith v. Jefferson County Bd. of Ed., No. 05-915, at this link."

Hein and Morse

From How Appealing:

"The second opinion in an argued case issued in Hein v. Freedom From Religion Foundation, Inc., No. 06-157. You can access the opinion here and the oral argument transcript here. Justice Alito announced the judgment of the Court on behalf of a three-Justice plurality. Justice Antonin Scalia issued an opinion concurring in the judgment, in which Justice Clarence Thomas joined. The remaining four Justices dissented in an opinion by Justice David H. Souter.

....

The fourth opinion in an argued case issued in Morse v. Frederick, No. 06-278. You can access the opinion here and the oral argument transcript here. The Chief Justice delivered the opinion of the Court."

Will the Real Jane Roe Please Stand Up

The New York Daily News has an article written by the real Jane Roe, Norma McCorvey, the woman who was the acrtual plaintiff in Roe v. Wade." Here is an excerpt:

As the plaintiff in that infamous Supreme Court case Roe vs. Wade, my life has been inextricably tied to the abortion issue. I once told a reporter, "This issue is the only thing I live for. I live, eat, breathe, think everything about abortion."

Thirty-four years later, I am 100% pro-life.

The Supreme Court's recent decision to uphold the federal ban on partial-birth abortion is the first step in overturning Roe vs. Wade. Banning the procedure - an act of infanticide where a scissors is jammed into the base of the infant's skull, a tube inserted and its brain sucked out - is a sign the court has finally come to its senses.

The case of Roe vs. Wade (I took the pseudonym of Jane Roe to protect my identity) took three years to reach the United States Supreme Court, so I never had the abortion. In fact, I have given birth to three children, all of whom were placed for adoption.

The core of the landmark Roe vs. Wade decision is that abortions are permissible for any reason a woman chooses, up until the "point at which the fetus becomes 'viable,' that is, potentially able to live outside the mother's womb, albeit with artificial aid. Viability is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks."

It might bother some that the story of my actual conversion does not mimic the intellectual engagement of Augustine's "take and read," Pascal's wager or C.S. Lewis' famous motorcycle ride. My disposition is somewhat simple.

I became very close to the young daughter of a friend who had considered abortion and I realized that "my law" (as I once fondly referred to Roe vs. Wade) could have snuffed out the life of this amazing little girl whom I had grown quite fond of. That, to me, was unacceptable.

If you are interested in McCorvey's personal journey concerning the abortion issue, you can read the rest if her piece here.

May City Government Require a Fire Fighter to March in a "Gay Pride" Parade?

Update: According to news reports, the Fire Chief has apologized and agreed to launch an internal investigation of the fire fighters complaint. I doubt if the city will ever again compel a fire fighter to march in a controversial parade.

This reminds me that sometimes even a weak case can be won outside of court when the facts of the litigation are published in local (or national) media. If the facts are embarrassing and outrageous, government officials are often anxious to make amends in order to make you and your complaint go away.

Dean Willborn questions the ethics of filing a frivolous lawsuit merely to embarass the governmental defendant. The key words there are "frivolous" and "merely." No?

By the way, here is a link to the complaint filed by the fire fighters.


There is a recent case in San Diego involving 4 city firemen who were ordered to march in a "gay pride" parade. Here is an excerpt from the press release put out by the Thomas More Law Center, which is representing the firemen:


Four respected San Diego firefighters were ordered, against their wishes, to participate in uniform on their city fire truck in the city’s annual “Gay Pride” parade. During the course of the ensuing three hour long ordeal, the firefighters were subjected to vile sexual taunts from homosexuals lining the parade route. This included the following statements: “show me your hose,” “you can put out my fire,” “you’re making me hot,” “give me mouth-to-mouth,” “you look hungry, why don’t you have a twinkie (from a man wearing a “Girth and Mirth” t-shirt),” and “blow my hose.” These firemen are devoted husbands and fathers. When they refused to respond to the crowd, some in the crowd turned hostile and started shouting, “F—k you firemen” and others began “flipping them off.”

San Diego area attorney, Charles LiMandri, the West Coast Director of the Thomas More Law Center, a national public interest law firm based in Ann Arbor, Michigan, is representing the firefighters in their legal claims against the city. LiMandri was also the lead counsel in the successful Mt. Soledad Cross case in San Diego. A 52 year native San Diegan, LiMandri stated: “What happened to these dedicated public servants was inexcusable. The City should have known from past experience the kind of offensive activities that go on at this event. This was a clear case of sexual harassment in violation of state and federal law as well as the City’s own code of conduct.”

Richard Thompson, President and Chief Counsel of the Thomas More Law Center added, “These firefighters dedicated their lives to save the lives of others. They did not sign on to become unwilling props to a controversial political and social agenda.”

Continued Thompson, “The constitutional right to free speech also protects the right not to speak. These men should not have to explain to their families, friends and church congregations that their presence at a celebration of lewdness and obscenity in support of the homosexual agenda was because they were forced there by way of a direct order. This is a clear violation of their constitutional rights, and the City must be held accountable. It should never happen again to any city employee.”


May city government compel its employees to march in a parade designed to endorse a controversial ideological position? Would the Free Exercise Clause protect a fireman whose objections were based on sincerely held religious beliefs? What about the right of religious belief? What about the right not to be compelled to affirm a belief with which you disagree?

Polygamy and Lawrence

Over at Concurring Opinions, there is a great post about Utah's law banning bigamy. Check it out!

Dorf on Standing

"The Supreme Court Oral Argument in the Global Warming Case Reveals What's Wrong with the Standing Doctrine"

Friday's Class: Focus on Three Cases

We are finishing the list of assignments right on schedule, but we will need to limit our focus somewhat concerning assignment number 22.

For Friday, December 1, 2006, please read all of assignment 22, but we will spend our class time on 3 cases:City of Cleburne (p.918), Romer(p.926), and Bruning(re-read your printout from link supra).

This Term's Racial Affirmative Action Cases

Today's USA Today has this article that includes this key passage:

The school districts in Louisville and Seattle are at the heart of a pair of legal disputes, now before the U.S. Supreme Court, that test whether public schools can use race as a factor in determining where students go to school. The cases, to be heard by the court Dec. 4, have drawn national attention because they could affect policies in districts across the country.

The key legal question in the Louisville and Seattle lawsuits — which were filed by parents of white students who weren't allowed to attend the schools of their choice — is whether school-assignment plans that use students' race as a factor violate the Constitution's guarantee of equality.

It's an emotionally charged issue that gives the court its first chance to weigh in on racial policies since Chief Justice John Roberts and Justice Samuel Alito joined the nine-member court last term. The new justices are former government lawyers who, early in their careers, showed reluctance toward government race-based policies.

Alito's actions in the cases could be especially significant because he replaced the retired Sandra Day O'Connor, who often joined the court's four-member liberal wing to form a majority in favor of affirmative action policies. In 2003, her vote in a case involving the University of Michigan law school ensured that colleges could consider applicants' race to achieve diversity.

The Court and Partial Birth Abortion: Two Views

New York Times

Washington Times

Partial Birth Abortion Cases to be Argued This Wednesday

Update: Howard Bashman has a preview of the partial birth abortion cases (which will be argued today) here. His prediction: "I expect that the Supreme Court will uphold the constitutionality of this federal law by a vote of 5–4, and in the aftermath of such a ruling states too will be free to ban the procedure by enacting similarly worded statutes."


Today's Chicago Trib has this article.

I will post the transcript of the oral argument as soon as I get a link.

Michigan Voters Abolish Racial Preferences

Not to be lost among all the results from yesterday's election returns is the Michigan ballot issue that would "prohibit the University of Michigan and other state universities, the state, and all other state entities from discriminating against or granting preferential treatment based on race, sex, color, ethnicity or national origin." That initiative won by a 58-42 vote of the people despite almost unanimous opposition from the powers that be in that state.

Here is today's coverage on the issue from the Detroit Free Press.

Lawrence Questions

1. Did Lawrence apply a kind of "medium rare scrutiny" to the Texas sodomy law?

2. After Lawrence, may a state criminalize prostitution or do consenting adults have a right of sexual autonomy that includes exchanging sex for money or money's worth?

3. May a state prohibit same sex marriage after Lawrence? In other words, may a state make it a crime for same-sex couples to cohabit as a "married" couple? What about a man who cohabits with more than one woman and holds himself out as "married" to both? Is there a difference between formal recognition of some new form of "marriage" and criminal proscription of that type of "marriage?"

4. What is the holding (the constitutional doctrine) of Lawrence? Is Lawrence basically Lochner with Mr. Vatsyayana's Kama Sutra substituted for "Mr. Herbert Spencer's Social Statics?"

5. Suppose the state of Texas re-enacts its sodomy law and bases its defense of the law on public health rather than public morality? Is public health a legitimate government interest? Is male on male anal sex associated with any rational public health concerns?