Saturday, April 9, 2011

Footnote of the Day: Tradition

In Arizona Christian School Tuition Organization v. Winn, decided this week, a deeply divided Court  reversed the Ninth Circuit's finding that an Arizona statute providing a tax credit to be used for education at religiously-funded schools violated the Establishment Clause.  The Court held that the taxpayer plaintiffs lacked standing.

In Justice Kagan's dissenting opinion, joined by three other Justices, she uses the word tradition" in footnote 10:

On this traditional view of the harm to taxpayers arising from state financing of religion, the Plaintiffs here can satisfy not only Article III’s injury requirement, but also its causation and redressability requirements. The majority’s contrary position, ante, at 15–16, stems from its miscasting of the injury involved; once that harm is stated correctly, all the rest follows. To wit: The Plaintiffs allege they suffer injury when the State funnels public resources to religious organizations through the tax credit. Arizona, they claim, has caused this injury by enacting legislation that establishes the credit. And an injunction limiting the credit’s operation would redress the harm by preventing the allegedly unlawful diversion of tax revenues. The Plaintiffs need not, as the majority insists, show that this remedy would “affect . . . their tax payments,” ante, at 16, any more than the taxpayer in Flast had to establish that her tax burden would decrease absent the Government’s funding of religious schools. As we have previously recognized, when taxpayers object to the spending of tax money in violation of the Establishment Clause (whether through tax credits or appropriations), “aninjunction against the spending would . . . redress [their] injury, regard-less of whether lawmakers would dispose of the savings in a way that would benefit the taxpayer-plaintiffs personally.” DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 348–349 (2006).

In the text accompanying this footnote, Kagan cites a portion of DaimlerChrysler as "describing how the Flast Court’s understanding of the Establishment Clause’s history led the Court to view the alleged “injury” as the expenditure of ' "tax money" in aid of religion.' "   Dissenting Opinion at 19.

James_Madison Moreover, Kagan's discusses some specific history and tradition relevant to the Establishment Clause: the famous statement by James Madison (pictured left) in Memorial and Remonstrance that governments should not “force a citizen to contribute three pence only of his property forthe support of any one establishment.’”  This is quoted by the Court, but Kagan disputes the majority's reliance:

And finally, James Madison provides no comfort to today’s majority. He referred to “three pence” exactly because it was, even in 1785, a meaningless sum of money; then, as today, the core injury of a religious establishment hadnaught to do with any given individual’s out-of-pocket loss.

Dissenting Opinion at 18.  Whenever the majority in Winn considers “tradition”  it does so in the text; the Court’s opinion does not possess any footnotes.  Justice Kennedy, writing for the Court, most explicitly invokes "tradition" by stating:

The concept and operation of the separation of powers in our National Government have their principal foundation in the first three Articles of the Constitution. Under Article III, the Federal Judiciary is vested with the“Power” to resolve not questions and issues but “Cases” or “Controversies.” This language restricts the federal judicial power “to the traditional role of the Anglo-American courts.” Summers v. Earth Island Institute, 555 U. S. 488, ___ (2009) (slip op., at 4). In the English legal tradition, the need to redress an injury resulting from a specificdispute taught the efficacy of judicial resolution and gavelegitimacy to judicial decrees. The importance of resolving specific cases was visible, for example, in the incremental approach of the common law and in equity’s considerationof exceptional circumstances. The Framers paid heed to these lessons.

Opinion at 4.

The role of “tradition” in recent Supreme Court cases is the subject of a new article, Constitutional Traditionalism in the Roberts Court by Louis J. Virelli III, Professor at Stetson University College of Law, draft available on ssrn, forthcoming in Pittsburgh Law Review.  Virelli considers the role of “tradition” in standing cases, as well as in other constitutional areas such as the dormant commerce clause, and the Fourth, Sixth, and Fourteenth Amendments. While Virelli discusses  “tradition” as a theoretical concept, his goal is not to enter the ideological fray, but instead his main project is an empirical one.   What does the Court actually say about tradition?  Using a dataset of the first five years of decisions from The Roberts Court, starting October 1, 2005, he searched for all cases that that contain the term “constitution” and at least one of the following  “tradition-related” terms:  “tradition,”  “culture,” “custom,” “heritage,”  or “history” with a yield of 222 entries.    He shows that some form of traditionalism was relied upon in approximately 44% of the cases decided by the Roberts Court.   

Virelli also provides an empirical portrait of the individual Justices in terms of their use of “tradition-related” language and provides some wonderfully illustrative bar graphs.  The Justice most likely to resort to tradition?  Not surprisingly, it is Justice Scalia.  The Justice least likely?  Perhaps more surprisingly, Justice Thomas.   Justice Kennedy, author of the majority opinion in the just-decided Winn, is third, after Scalia and Roberts.  Justices Sotomayor and Kagan are not included in years of the analysis, but the analysis includes Justices Stevens and Souter, with Souter not being as much of a traditionalist in the Roberts Courts years as he seemed to be earlier.

Perhaps in a future project, Professor Virelli will illuminate the intersection between traditionalism and footnotes?

RR

[image: James Madison, 1818, Portrait in the White House Collection, via]

April 9, 2011 in Cases and Case Materials, Courts and Judging, Establishment Clause, First Amendment, Games, History, Interpretation, Opinion Analysis, Recent Cases, Religion, Scholarship, Standing, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Reining the Independent Fed

Sean Fielder and Jeffrey Bell of the American Principles Project wrote last week in the Wall Street Journal that the Federal Reserve is too independent--but not too independent from the President (a conlawprof's usual worry), rather too independent from Congress.  (Thanks to Jon Gutek for the tip.)

Fielder and Bell argue that the Fed's problematic independence arose when we abandoned the gold standard (in favor of mere "statutory supervision" of the Fed).  They explain:

Statutory supervision of government bureaucracies is usually workable because Congress maintains the power of the purse.  But the Fed, which can print money, has no budget constraint.  Its profit and loss statement doesn't matter because, unlike every other legal entity, its liabilities are irredeemable.  Not having a real budget means that the Fed doesn't have to compete with anyone for scarce resources.

Their answer is to bring back the gold standard, or at least to let gold compete with federal reserve notes. 

Dollar 
 

The argument in places like Utah--which has moved to legalize gold and silver as legal currency in the state--is that gold and silver will crowd out devaluing federal reserve notes, because people, businesses, and banks will see that gold and silver, unlike fed notes, hold their value.  Fielder and Bell say that this competition will "concentrate the minds of the Federal Reserve Board on keeping inflation under control."

Goldcoin 

For more on Utah's efforts, check out the Utah Tenth Amendment Center and the Constitutional Tender Act template.  The Tenth Amendment Center tracks similar state efforts here.

SDS

 

April 9, 2011 in Appointment and Removal Powers, Congressional Authority, Federalism, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

On Floors, Ceilings, Federalism and Constitutional Law Exams: West Virginia Weekend

The passage of the Affordable Care Act in early 2010 has prompted a variety of constitutional challenges which we’ve covered extensively, including here and here.  For ConLawProfs who like to frame their examinations around curent controversies, the Affordable Health Care Act provides an excellent opportunity.

A good background and refresher on federal power and federalism concerns is WVU College of Law Professor Gerald G. Ashdown 's article Federalism’s Floor, 80 Miss. L.J. 69, 74 (2010).  WV Weekend Logo Ashdown  examines the Rehnquist Court’s movement toward limited federal power, and then attempts to explain why the federalism movement  “seems to have bottomed out, or reached a floor on limiting the reach of federal power."  In doing so, Ashdown frames his analysis with a discussion of several factors, including the “natural limits on the Court’s recent Commerce Clause, sovereign immunity, and Section 5 (of the Fourteenth Amendment) decisions; congressional use of the Spending Clause, and politics both outside and inside the Court.” Id.

First, Ashdown’s look at recent Commerce Clause cases brings his thesis into clearer focus.  Most students of constitutional law are quite familiar with the decisions in United States v. Lopez and United States v. Morrison, cases which struck down federal enactments under a narrower application of the Commerce Clause.  Students should be just as familiar with Gonzales v. Raich, a decision in which the court upheld the authority of Congress to regulate the intrastate production and use of marijuana under the aggregation theory of the Commerce Clause, best exemplified by the decision in Wickard v. Filburn.  Ashdown writes that “Raich is a hard case, and although it did not necessarily produce bad law, it did produce weird, if not predictable, results—at least for federalism after Lopez and Morrison.” Id. at 77.  Ultimately, Ashdown concludes that “[e]ven when the affecting commerce theory of Lopez and Morrison is relied upon, there seem to be practical and ideological barriers, illustrated by Raich, to limiting federal commerce authority.  In other words, there are pragmatic barriers to further Court action restricting congressional power under the Commerce Clause.” Id. at 79-80.

Professor Ashdown turns next to the complex subject of sovereign immunity and the effect of Section 5 abrogation, writing that

[t]he combination of Seminole Tribe of Florida v. Florida, which held that Congress could abrogate state sovereign immunity only under Section 5 of the Fourteenth Amendment and not under the Commerce Clause, and City of Boerne v. Flores, interpreting Section 5 narrowly to disallow Congress from protecting “rights” more broadly than those identified by the Supreme Court, seemed to place substantial limits on the reach of federal authority over the states. Taken together, these cases mean that Congress only has Section 5 power to regulate state government and that the federal enactment must be a “congruent and proportional” remedy to a constitutional violation identified by the Court.

Id. at 80.  Despite these barriers to expanded federal power, a more recent decision in Nevada Dep’t of Human Resources v. Hibbs, upheld the Family Medical Leave Act (FMLA) because the Act was a proportional and congruent remedy to the historical discrimination by states on the basis of gender. Inside supreme court Next, Professor Ashdown surveys Spending Clause jurisprudence, beginning with the key case of South Dakota v. Dole, where the Court upheld the federal requirement that states accepting highway funds must enact twenty-one-year-old drinking age laws or suffer loss of funding.  While it upheld the restriction, the Court took note of some limits on conditional spending.  “The Court’s own spending jurisprudence thus provides another barrier to judicial tinkering with the federalism balance,” according to Ashdown. Id. at 93.  Finally, Ashdown observes the effects of national political processes on some federalism issues that reach the courts.  The federal partial-birth abortion ban illustrates Ashdown’s point.  “The pro-life, conservative side that normally would align with restraints on federal power naturally supported the statute, and the pro-choice group who opposed the Act evidently was unwilling to challenge the use of federal authority, something liberals generally favor, . . . as social progressives would be extremely reluctant to give the federal courts . . . the opportunity to place further limits on federal commerce power.” Id. at 97-98.  These “political checks,” Ashdown argues, operate in addition to judicial dynamics “as a practical floor on potential judicial inroads on federal power.” Id. at 98-99.

In the end, Ashdown observes that “the Supreme Court’s own jurisprudence has established a floor on shifting power to state governments,” and “[f]ederalism tends to get ignored in favor of first-order issues like abortion, gun control, and civil rights.” Id. at 103.  Ashdown aptly foreshadows the litigation surrounding the Affordable Health Care Act - - - and possible "floor and ceiling" issues on forthcoming constitutional law exams.

RR

with J. Zak Ritchie

[image: Inside the US Supreme Court building via]

April 9, 2011 in Commerce Clause, Federalism, Scholarship, Spending Clause, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Footnote of the Day: It's the Contract(s) Clause

Article I, section 10 of the Constitution provides that "no state shall" "pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts."  That last prohibition is known as the Contracts Clause - - - or is it the Contract Clause?      108px-Roman_S.svg   

Professor Jay Wexler  reveals that federal courts are about five times more likely to use the term "Contract Clause" than "Contracts Clause"  - - - 4800 to 900 cases in the "allfeds" database. 

But as Wexler notes, the Fourth Circuit has devoted a footnote to deciding the issue.  Wexler is exceedingly knowledgeable about judicial footnotes and we've previously discussed his useful taxonomy.  But how would this footnote be classified?   Footnote 2 in the opinion in Crosby v. City of Gastonia, decided March 10, 2011, stated:

The Clause provides, in pertinent part, that "[n]o State shall . . . pass  any . . . Law impairing the Obligation of Contracts." U.S. Const. art. I, § 10, cl. 1. The Supreme Court and nearly all federal courts have, over the years, inconsistently denominated this key provision of Article I as both the "Contract Clause" and the "Contracts Clause." Because the text of the Constitution speaks of the obligation of "contracts" in the plural, we will use that form of the noun to refer to the Clause in this opinion.

(ellipses in orginal).

Wexler notes that Justice O'Connor was sitting by designation on the Fourth Circuit panel, but also expresses his opinion about the relevance of the singular and plural designations for the clause in question. Wexler's post - - - and his new blog "Odd Clauses Watch" is well worth a read.

RR

April 9, 2011 in Contract Clause, Courts and Judging, Games, Interpretation, Weblogs | Permalink | Comments (0) | TrackBack (0)

Friday, April 8, 2011

D.C. Circuit Rejects Guantanamo Habeas Petition

A three-judge panel of the D.C. Circuit today upheld the District Court's denial of Guantanamo detainee Yasein Khasem Mohammad Esmail's habeas corpus petition.  The panel, in a per curiam opinion, wrote, "Because we agree with the district court's ultimate determination that Esmail was more likely than not 'part of' al Qaeda at the time of his capture in December of 2001, we affirm."

The decision is unremarkable--it applies the "part of" and preponderance tests, and deals unsurprisingly with the evidence--with one notable exception: Judge Silberman's concurrence.

Judge Silberman took issue with everything from the standard in habeas cases, to the dangers that released detainees pose, to the challenges that lower courts face in implementing Boumediene v. Bush, and even to the "charade" when the administration declines to release winning petitioners.  It's worth a read:

[T]he government at oral argument agreed that even if petitioner could show he resolutely declined to "join" al Qaeda or the Taliban, and thus could not be said to be a part of either, so long as evidence showed he fought alongside of al Qaeda, the Taliban, or with associated forces he would be covered by the Authorization for Use of Military Force.  District courts, in that sort of case, need not strain to find a petitioner is "a part of al Qaeda." . . .

When we are dealing with detainees, candor obliges me to admit that one can not help but be conscious of the infinitely greater downside risk to our country [than when our criminal justice system releases likely criminals when a conviction is based on insufficient evidence], and its people, of an order releasing a detainee who is likely to return to terrorism.  One does not have to be a "Posnerian"--a believer that virtually all law and regulation should be judged in accordance with a cost/benefit analysis--to recognize this uncomfortable fact.

That means that there are powerful reasons for the government to rely on our opinion in Al-Adahi v. Obama, which persuasively explains that in a habeas corpus proceeding the preponderance of evidence standard that the government assumes binds it, is unnecessary--and moreover, unrealistic.  I doubt any of my colleagues will vote to grant a petition if he or she believes that it is somewhat likely that the petitioner is an al Qaeda adherent or an active supporter.  Unless, of course, the Supreme Court were to adopt the preponderance of the evidence standard (which it is unlikely to do--taking a case might obligate it to assume direct responsibility for the consequences of Boumediene). . . .

Of course, if it turns out that regardless of our decisions the executive branch does not release winning petitioners because no other country will accept them and they will not be released into the United States, see Kiyemba v. Obama, then the whole process leads to virtual advisory opinions.  It becomes a charade prompted by the Supreme Court's defiant--if only theoretical--assertion of judicial supremacy, see Boumediene, sustained by posturing on the part of the Justice Department and providing litigation exercise for the detainee bar.

SDS

April 8, 2011 in Cases and Case Materials, Executive Authority, Habeas Corpus, Jurisdiction of Federal Courts, News, Opinion Analysis, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Wisconsin Supreme Court Election Updated Again

WISCONSIN COURT UPDATE:
"The clerk in a Republican stronghold tilted the tight Supreme Court race in favor of Justice David Prosser by recovering thousands of untallied votes for the incumbent," according to the Milwaukee Journal Sentinal, which has been doing excellent reporting on the race.

Original post discussing the election, Prosser's judicial temperment, and possible litigation here.

RR

April 8, 2011 in News, State Constitutional Law | Permalink | Comments (1) | TrackBack (0)

Footnote of the Day: Star Trek as a Citation for the State's Police Power

If there is one citation that best explains the constitutional "police power" of the state, it might be from well-established precedent, or perhaps even literature, but what about Star Trek? 

Here's the footnote:   

Star Trek

See Star Trek II: The Wrath of Khan (Paramount Pictures 1982). The film references several works of classic literature, none more prominently than A Tale of Two Cities. Spock gives Admiral Kirk an antique copy as a birthday present, and the film itself is bookended with the book's opening and closing passages. Most memorable, of course, is Spock's famous line from his moment of sacrifice: “Don't grieve, Admiral. It is logical. The needs of the many outweigh ...” to which Kirk replies, “the needs of the few.”

Robinson v. Crown Cork & Seal Co., Inc., __ S.W.3d ___, 2010 WL 4144587  n.21 (Willet, J. concurring) (Tex. 2010). 

The case addressed whether a statute that limits certain corporations' successor liability for personal injury claims of asbestos exposure violated the prohibition against retroactive laws contained in article I, section 16 of the Texas Constitution as applied to a pending action.

The Texas Supreme Court held the statute unconstitutional, finding any public interest served by the statute to be "slight."

Justice Willet, concurring, viewed the case not merely about whether the statute “singled out Barbara Robinson and unconstitutionally snuffed out her pending action against a lone corporation,” but it is about delimiting “the outer edge of police-power constitutionality,” an issue that “has bedeviled Texas courts for over a century.”   Thus, Willet writes:

Appropriately weighty principles guide our course. First, we recognize that police power draws from the credo that “the needs of the many outweigh the needs of the few.” Second, while this maxim rings utilitarian and Dickensian (not to mention Vulcan), it is cabined by something contrarian and Texan: distrust of intrusive government and a belief that police power is justified only by urgency, not expediency.

Footnote 21, of course, is to the word "Vulcan."

RR

with J. Zak Ritchie

[image: Star Trek Wrath of Khan uniform, via]

April 8, 2011 in Courts and Judging, Film, Games, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Thursday, April 7, 2011

Senate Judiciary Moves on Nominations, Liu, Sunshine in Courtroom

The Senate Judiciary Committee today ordered reported the nominations of five nominees to the federal bench, all by voice vote, with one exception: Goodwin Liu (Boalt Hall), nominee to the Ninth Circuit, was ordered reported by a roll call along party lines, 10 to 8.  (The Committee has approved Liu three times now within a year.  Get the full details and history at confirmgoodwinliu.com, a blog tracking Liu's nomination.  For more on all federal judicial nominations, check out judicialnominations.org.)

Republicans continue to oppose Liu's nomination based on his 2006 testimony against the confirmation of Samuel Alito to the Supreme Court and their concerns that he would be an "activist" judge.  They're also likely concerned that Liu, if confirmed now, could later get a nomination to the Supreme Court.  Republican Senator Kyl said today that there's a "definite possibility" of a filibuster.  If so, full Senate confirmation seems unlikely: None of the 48 Senate Republicans has publicly supported Liu.

In the same meeting today, the Committee ordered reported the Sunshine in the Courtroom Act, S. 410, which would allow (but not require) federal courts, including the Supreme Court, to permit recording, broadcasting, and televising proceedings.

SDS

April 7, 2011 in Appointment and Removal Powers, Courts and Judging, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Arkansas Supreme Court Holds Ban on Adoption by Unmarried Couples Unconstitutional

Affirming a state trial judge's conclusion rendered almost a year ago, the Arkansas Supreme Court today declared the Arkansas law banning adoption by unmarried couples unconstitutional under the state constitution in a 25 page opinion, Arkansas Department of Human Services v. Cole.

The law, Act One, was passed by the voters in November 2008 and prohibited cohabiting same-sex couples and (unmarried) heterosexual couples from becoming foster or adoptive parents. 

 

CHILDREN ART

The Arkansas Supreme Court held that there is a fundamental, if implicit, right of privacy in the state constitution: "under the Arkansas Constitution, sexual cohabitors have the right to engage in private, consensual, noncommercial intimacy in the privacy of their homes."  This right was infringed by Act One which "precludes all sexual cohabitors, without exception, from eligibility for parenthood, whether by means of adoption or foster care."   The court found it objectionable that under Act One state "agencies must 'police' couples seeking adoption or foster care to determine whether they are sexually involved in the event those couples represent that they are celibate."

Based on the existence of the fundamental right, the court applied a "heightened scrutiny" standard which it defined as requiring a compelling interest and least restrictive method to carry out that interest.

The court articulated the interests and concerns raised by the state and the intervenor, Family Council Action Committee, that has sponsored the ballot initiative. These concerns included arguments that unmarried cohabiting relationships are less stable, put children at higher risk for domestic violence and abuse, and have lower income rates, higher infidelty rates, and less "social support."  The court did not engage in any discussion about whether or not such propositions were true, but instead concluded that such concerns could be "addressed by the individualized screening process currently in place in foster and adoption cases."

Thus, the individualized assessments were the least restrictive means and the categorical ban failed to pass "constitutional muster." 

 RR

(H/T Tony Infanti, at Feminist Law Professors Blog)

 [image: by Moritz Pläschke, circa 1888) via]

April 7, 2011 in Cases and Case Materials, Family, Fundamental Rights, Gender, Opinion Analysis, Privacy, Sexual Orientation, Sexuality, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Wisconsin Supreme Court Election Update

In the contentious Wisconsin election for Supreme Court Justice, the challenger JoAnne Kloppenburg has declared victory although she reportedly has a margin of approximately 200 votes. {UPDATE: vote count reversed and fluctuating}.

The incumbent,  David Prosser, currently a member of the state supreme court, has not conceded. 

The election is widely viewed as an example of the politicization of judicial elections.  WISCONSIN COURT In Wisconsin, the political issues revolve around Governor Walker’s proposal the elimination collective bargaining for public employees; an issue that is in litigation that could reach the state supreme court.  The Wisconsin election could be compared to the recent Iowa election which was seen as a referendum on same-sex marriage; the nomination process after that election resulted in an all-white all-male state supreme court.

Additionally, however, Prosser’s personal judicial temperament was a campaign issue.  Prosser reportedly called one of his fellow justices, a woman, a sexist slur.  In an interview with FoxNews, Prosser admited regret engaging in the name-calling, but says it was not all his fault and there was "some provocation."   A brief report with video clip is here; a longer video also discussing other issues is here.

The seemingly inevitable recount could result in litigation before the state supreme court.  However, the first step would be a trial.  And, according to the latest report from Milwaukee Journal Sentinel:

In one twist, state law calls for Chief Justice Shirley Abrahamson to appoint the state judge who would hear the case if the loser of a recount in a statewide election goes to court over the outcome. Abrahamson and Prosser have clashed on the court. Prosser's private remark calling Abrahamson a "total bitch" was the subject of a recent political ad attacking Prosser.

 

RR

April 7, 2011 in Campaign Finance, Current Affairs, State Constitutional Law, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Footnote of the Day: Citizens United and "the Bellotti footnote" Part II

In First National Bank of Boston v. Bellotti, 435 U. S. 765 (1978),  Corporate Building relied upon by the Court in Citizen’s United v. Federal Election Comm’n, __ US __, 130 S.Ct. 876 (2010), the Court considered a Massachusetts statute that prohibited banks and other businesses from making contributions or expenditures to influence the outcome of a vote on any question submitted to voters other than questions materially affecting the property, business or assets of the corporation.

We’ve previously discussed footnote 26 of Bellotti.  

But perhaps footnote 15 is even more trenchant:

It has been settled for almost a century that corporations are persons within the meaning of the Fourteenth Amendment. Santa Clara County v. Southern Pacific R. Co., 118 U.S. 394(1886); see Covington & Lexington Turnpike R. Co. v. Sanford, 164 U.S. 578 (1896).

 435 U.S. at 780 n.15. 

RR

[image via]

April 7, 2011 in Campaign Finance, Elections and Voting, First Amendment, Fourteenth Amendment, Games | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 6, 2011

Footnote of the Day: Citizens United and "the Bellotti footnote" Part I

The opinions in Citizen’s United v. Federal Election Comm’n, __ US __, 130 S.Ct. 876 (2010) display a Court in deep disagreement, including disagreement over a footnote.

Writing for the Court, Justice Kennedy opined:

A single footnote in [First National Bank of Boston v. ] Bellotti purported to leave open the possibility that corporate independent expenditures could be shown to cause corruption. 435 U. S., at 788, n. 26. For the reasons explained above, we now conclude that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.  Dicta in Bellotti's footnote suggested that “a corporation's right to speak on issues of general public interest implies no comparable right in the quite different context of participation in a political campaign for election to public office.” Ibid. Citing the portion of Buckley that invalidated the federal independent expenditure ban, 424 U.S., at 46, 96 S.Ct. 612, and a law review student comment, Bellotti surmised that “Congress might well be able to demonstrate the existence of a danger of real or apparent corruption in independent expenditures by corporations to influence candidate elections.” 435 U.S., at 788, n. 26, 98 S.Ct. 1407. Buckley, however, struck down a ban on independent expenditures to support candidates that covered corporations, 424 U.S., at 23, 39, n. 45, 96 S.Ct. 612, and explained that “the distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application,” id., at 42, 96 S.Ct. 612. Bellotti 's dictum is thus supported only by a law review student comment, which misinterpreted Buckley. See Comment, The Regulation of Union Political Activity: Majority and Minority Rights and Remedies, 126 U. Pa. L.Rev. 386, 408 (1977) (suggesting that “corporations and labor unions should be held to different and more stringent standards than an individual or other associations under a regulatory scheme for campaign financing”).

__ U.S. at ___, 130 S.Ct at 909.

In Justice Stevens’ dissenting opinion, he argued:

The Court’s critique of Bellotti ’s footnote 26 puts it in the strange position of trying to elevate Bellotti to canonical status, while simultaneously disparaging a critical piece of its analysis as unsupported and irreconcilable with BuckleyBellotti, apparently, is both the font of all wisdom and internally incoherent.

___ U.S. at ___, 130 S.Ct. at 959  (Stevens, J. dissentng).

In First National Bank of Boston v. Bellotti, 435 U. S. 765 (1978), the Court found unconstitutional a Massachusetts statute that prohibited banks and other businesses from making contributions or expenditures to influence the outcome of a vote on any question submitted to voters other than questions materially affecting the property, business or assets of the corporation.

The troublesome footnote, footnote 26, including its "cf" signals and citations, provides:

In addition to prohibiting corporate contributions and expenditures for the purpose of Corporate Building influencing the vote on a ballot question submitted to the voters, 8 [of the state law] also proscribes corporate contributions or expenditures “for the purpose of aiding, promoting or preventing the nomination or election of any person to public office, or aiding, promoting, or antagonizing the interests of any political party.” See n. 2, supra. In this respect, the statute is not unlike many other state and federal laws regulating corporate participation in partisan candidate elections. Appellants do not challenge the constitutionality of laws prohibiting or limiting corporate contributions to political candidates or committees, or other means of influencing candidate elections. Cf. Pipefitters Local Union No. 562 v. United States, 407 U.S. 385 (1972); United States v. United Automobile Workers, 352 U.S. 567 (1957); United States v. CIO, 335 U.S. 106 (1948). About half of these laws, including the federal law, 2 U.S.C. § 441b (1976 ed.) (originally enacted as the Federal Corrupt Practices Act, 34 Stat. 864), by their terms do not apply to referendum votes. Several of the others proscribe or limit spending for “political” purposes, which may or may not cover referenda. See Schwartz v. Romnes, 495 F.2d 844 (2nd Cir.1974).

 The overriding concern behind the enactment of statutes such as the Federal Corrupt Practices Act was the problem of corruption of elected representatives through the creation of political debts. See United States v. United Automobile Workers, supra, 352 U.S., at 570-575; Schwartz v. Romnes, supra, at 849-851. The importance of the governmental interest in preventing this occurrence has never been doubted. The case before us presents no comparable problem, and our consideration of a corporation's right to speak on issues of general public interest implies no comparable right in the quite different context of participation in a political campaign for election to public office. Congress might well be able to demonstrate the existence of a danger of real or apparent corruption in independent expenditures by corporations to influence candidate elections. Cf. Buckley v. Valeo, 424 U.S., at 46; Comment, The Regulation of Union Political Activity: Majority and Minority Rights and Remedies, 126 U.Pa.L.Rev. 386, 408-410 (1977).

435 U. S. at 788, n. 26.

In the next segment of "footnote of the day,"  April 7, Part II of Citizens United and "the Bellotti footnote."

RR

[image via]

April 6, 2011 in Campaign Finance, Cases and Case Materials, Courts and Judging, First Amendment, Fourteenth Amendment, Games | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 5, 2011

Obama & Human Rights Conference at American U.

The American University Center for Human Rights and Humanitarian Law will host a conference in Washington, D.C., on April 28 and 29 on Obama & Human Rights.

Provost-human-rights-hero5 

There's an impressive group of participants, and the list is growing:

  • Diane Orentlicher, Deputy, State Department Office for War Crimes Issues
  • Vince Warren, ED, Center for Constitutional Rights
  • Suzanne Nossel, Deputy Assistant Secretary, Bureau of International Organizations
  • Gary Motsek, Deputy Assistant Secretary of Defense for Program Support
  • Peter Sprigg, Senior Fellow for Policy Studies, Family Research Council
  • Joe Stork, Deputy Director of the Middle East and North Africa Division, Human Rights Watch
  • Shari Knoerzer, Social Responsibility and Community Development-Asia and Africa, Freeport-McMoRan Copper & Gold, Inc.

Aryeh Neier, President of the Open Society Foundations, will deliver the keynote, titled The Arab Revolutions, Human Rights and the Obama Administration, on Thursday, April 28, at 1:00 p.m.

Registration is free.  For more information and registration, click here.

SDS

April 5, 2011 in Conferences, Fundamental Rights | Permalink | Comments (0) | TrackBack (0)

Footnote of the Day: Brown's Footnote 11

In Brown v. Board of Education, 347 U.S. 483 (1954), the unanimous Court grounded its reasoning for departing from of Plessy v. Ferguson’s “separate but equal” doctrine in its famous (or perhaps notorious) footnote 11, citing “modern authority” demonstrating the social and psychological problems attributable to racial segregation:

FN11. K. B. Clark, Effect of Prejudice and Discrimination on Personality Development (Midcentury White House Conference on Children and Youth, 1950); Witmer and Kotinsky, Personality in the Making (1952), c. VI; Deutscher and Chein, The Psychological Effects of Enforced Segregation: A Survey of Social Science Opinion, 26 J.Psychol. 259 (1948); Chein, What are the Psychological Effects of Segregation Under Conditions of Equal Facilities?, 3 Int. J. Opinion and Attitude Res. 229 (1949); Brameld, Educational Costs, in Discrimination and National Welfare (MacIver, ed., 1949), 44-48; Frazier, The Negro in the United States (1949), 674-681. And see generally Myrdal, An American Dilemma (1944).

 The language to which the footnote refers is

“Whatever may have been the extent of psychological knowledge at the time of Plessy v. Ferguson, this finding is amply supported by modern authority. [FN 11] Any language in Plessy v. Ferguson contrary to this finding is rejected.”

 

Warren_Court_1953

Scholarship discussing footnote 11 is plentiful, but two explicit pieces that review the controversies are the Student Comment by Sanjay Mody, Brown Footnote Eleven in Historical Context: Social Science And The Supreme Court's Quest For Legitimacy, 54 Stanford L. Rev. 793 (2002), and Professor Michael Heise's Brown v. Board Of Education, Footnote 11, and Multidisciplinarity, 90 Cornell L. Rev. 279 (2005).   

Professor Malik Edwards seeks to “update” footnote 11 post- Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007) in  Footnote Eleven for the New Millennium: Ecological Perspective Arguments in Support of Compelling Interest, 31 Seattle U. L. Rev. 891 (2008).

Meanwhile, the organization that developed the litigation strategy of Brown - - - the NAACP - - - is undergoing its own changes with a new generation of leaders who are not exclusively African-American.  Yesterday's NPR story ishere.

RR

with J. Zak Ritchie

[image: The Warren Court in 1953 via]

April 5, 2011 in Cases and Case Materials, Courts and Judging, Equal Protection, Fourteenth Amendment, Games, History, Race, Scholarship, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, April 4, 2011

Government to Prosecute Alleged Terrorists in Military Tribunals

Attorney General Eric Holder announced on Monday that the Justice Department would turn the cases of alleged 9/11 conspirators Khalid Sheikh Mohammed, Walid Muhammad Bin Attash, Ramzi Bin Al shibh, Ali Abdul-Aziz Ali, and Mustafa Ahmed Al Hawsawi to the Department of Defense to proceed in military commissions.  The move is a reversal for an administration that sought to prosecute these individuals in Article III courts.

AG Holder cited congressional restrictions on trying alleged terrorists held at Guantanamo Bay in Article III courts, and he reiterated the administration's constitutional objection to those restrictions:

Unfortunately, since I made that decision [to try alleged terrorists in Article III courts], Members of Congress have intervened and imposed restrictions blocking the administration from bringing any Guantanamo detainees to trial in the United States, regardless of the venue.  As the President has said, those unwise and unwarranted restrictions undermine our counterterrorism efforts and could harm our national security.  Decisions about who, where and how to prosecute have always been--and must remain--the responsibility of the executive branch.  Members of Congress simply do not have access to the evidence and other information necessary to make prosecution judgments.  Yet they have taken one of the nation's most tested counterterrorism tools off the table and tied our hands in a way that could have serious ramifications.  We will continue to seek to repeal those restrictions.

President Obama earlier objected to the restrictions on constitutional grounds, in his signing statement to the Ike Skelton National Defense Authorization Act for Fiscal Year 2011.  (We covered his statement here.) 

Section 1032 [which bars the use of funds authorized to be appropriated to transfer Guantanamo detainees into the United States] represents a dangerous and unprecedented challenge to critical executive branch authority to determine when and where to prosecute Guantanamo detainees, based on the facts and the circumstances of each case and our national security interests. 

These constitutional claims about executive prosecutorial authority aren't new or novel, of course.  For example, we heard them early on in the government's prosecutorial decisions of alleged terrorists in the Bush administration.  Check out this exchange at oral argument in Hamdi v. Rumsfeld between Justice Ginsburg and the Bush administration SG Paul Clement:

Justice Ginsburg: Does the Government have any rhyme or rational as to why some of these people . . . they are also being kept away from returning any place because there are criminal charges against them. . . .  [H]ow does the Government justify some going through the criminal process and others just being held indefinitely?

Mr. Clement: Justice Ginsburg, I think that reflects the sound exercise of prosecutorial and executive discretion.  There are some individuals who may be captured in a situation where they did not have any particular intelligence value, they have been handled in a way where there are no difficult evidentiary questions that would be raised in a criminal prosecution and those individuals can be dealt with in the Article III system.  But there are plenty of individuals who either have a paramount intelligence value that putting them into the Article III system immediately and providing them with counsel whose first advice would certainly be to not talk to the Government is a counterproductive way to proceed in these cases.

SDS

April 4, 2011 in Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

No Standing in Establishment Clause Challenge: Arizona Christian School Tuition Organization v. Winn Opinion Analysis

The Court issued its 5-4 opinion in Arizona Christian School Tuition Organization v. Winn, reversing the Ninth Circuit's finding that the Arizona statute violated the Establishment Clause by holding that the challengers lacked standing.

In his concurring opinion, Justice Scalia identifies the "struggle" between the majority and dissent as being whether the challenge to the Arizona tuition tax credit falls within the narrow exception of Flast v. Cohen, 392 U.S. 83 (1968).  For Scalia (joined by Thomas), this struggle is unnecessary because the "misguided" decision of Flast v. Cohen should be repudiated. Stained Glass

The Arizona provision at issue in Winn allows a tax credit for a contribution to school tuition organizations, STOs, many of which are religious. 

Writing for the Court, Justice Kennedy quickly sets the tone by noting that the challengers "sought intervention from the Federal Judiciary."  In further description of the facts, Kennedy notes that while the challengers "may be right that Arizona’s STO tax credits have an estimated annual value of over $50 million," the Arizona Christian School Tuition Organization is also right that "the STO program might relieve the burden placed on Arizona’s public schools," and the "result could be an immediate and permanent cost savings for the State." 

Kennedy thereafter analyzes the requirement of particularized injury:

Even assuming the STO tax credit has an adverse effect on Arizona’s annual budget, problems would remain. To conclude there is a particular injury in fact would require speculation that Arizona lawmakers react to revenue shortfalls by increasing respondents’ tax liability.[citation omitted].  A finding of causationwould depend on the additional determination that any tax increase would be traceable to the STO tax credits, as distinct from other governmental expenditures or other tax benefits. Respondents have not established that an injunction against application of the STO tax credit would prompt Arizona legislators to “pass along the supposed increased revenue in the form of tax reductions.”

Thus, the injury must be economic, give that the "STO tax credit is not tantamount to a religious tax or to a tithe and does not visit the injury identified in Flast." 

Kagan, writing for the four dissenting Justices, argues that there is little, if any, difference between appropriations and tax expenditures:  "Cash grants and targeted tax breaks are means of accomplishing the same government objective," and taxpayers who "oppose state aid of religion have equal reason to protest whether that aid flows from the one form of subsidy or the other."

Kagan criticizes the Court's opinion as offering a "road map —more truly, just a one-step instruction—to any government that wishes to insulate its financing of religious activity from legal challenge":

Structure the funding as a tax expenditure, and Flast will not stand in the way. No taxpayer will have standing to object. However blatantly the government may violate the Establishment Clause, taxpayers cannot gain access to the federal courts. And by ravaging Flast in this way, today’s decision damages one of this Nation’s defining constitutional commitments. “Congress shall make no law respecting an establishment of religion”—

Kennedy's Opinion for the Court ends by appealing to the prospect of a different type of damage and constitutional commitment: limited judicial power.

Few exercises of the judicial power are more likely to undermine public confidence in the neutrality and integrity of the Judiciary than one which casts the Court in the role of a Council of Revision, conferring on itself the power to invalidate laws at the behest of anyone who disagreeswith them. In an era of frequent litigation, class actions, sweeping injunctions with prospective effect, and continuing jurisdiction to enforce judicial remedies, courts mustbe more careful to insist on the formal rules of standing,not less so. Making the Article III standing inquiry all the more necessary are the significant implications of constitutional litigation, which can result in rules of wide applicability that are beyond Congress’ power to change. The present suit serves as an illustration of these principles. The fact that respondents are state taxpayers does not give them standing to challenge the subsidies that [Arizona statute] §43–1089 allegedly provides to religious STOs. To alter the rules of standing or weaken their requisite elements would be inconsistent with the case-or-controversy limitation on federal jurisdiction imposed by Article III.

 RR

[image via]

April 4, 2011 in Cases and Case Materials, Establishment Clause, First Amendment, Opinion Analysis, Religion, Standing, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Footnote of the Day: The Experience and History of Inequality

On the anniversary of the 1968 assassination of Martin Luther King, footnote 24 of Justice Thurgood Marshall’s concurring and dissenting opinion in Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985) is appropriate.  Marshall's footnote is condensation of equal protection theory and an argument for judicial consideration of history and experience.  It is also an illumination of footnote 4 of Carolene Products.  Marshall (pictured) wrote:

Thurgood Photo

No single talisman can define those groups likely to be the target of classifications offensive to the Fourteenth Amendment and therefore warranting heightened or strict scrutiny; experience, not abstract logic, must be the primary guide. The "political powerlessness" of a group may be relevant, San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 28 (1973), but that factor is neither necessary, as the gender cases demonstrate, nor sufficient, as the example of minors illustrates. Minors cannot vote and thus might be considered politically powerless to an extreme degree. Nonetheless, we see few statutes reflecting prejudice or indifference to minors, and I am not aware of any suggestion that legislation affecting them be viewed with the suspicion of heightened scrutiny. Similarly, immutability of the trait at issue may be relevant, but many immutable characteristics, such as height or blindness, are valid bases of governmental action and classifications under a variety of circumstances. See ante, at 442-443, n. 10. The political powerlessness of a group and the immutability of its defining trait are relevant insofar as they point to a social and cultural isolation that gives the majority little reason to respect or be concerned with that group's interests and needs. Statutes discriminating against the young have not been common nor need be feared because those who do vote and legislate were once themselves young, typically have children of their own, and certainly interact regularly with minors. Their social integration means that minors, unlike discrete and insular minorities, tend to be treated in legislative arenas with full concern and respect, despite their formal and complete exclusion from the electoral process. The discreteness and insularity warranting a "more searching judicial inquiry," United States v. Carolene Products Co., 304 U.S. 144, 153 , n. 4 (1938), must therefore be viewed from a social and cultural perspective as well as a political one. To this task judges are well suited, for the lessons of history and experience are surely the best guide as to when, and with respect to what interests, society is likely to stigmatize individuals as members of an inferior caste or view them as not belonging to the community. Because prejudice spawns prejudice, and stereotypes produce limitations that confirm the stereotype on which they are based, a history of unequal treatment requires sensitivity to the prospect that its vestiges endure. In separating those groups that are discrete and insular from those that are not, as in many important legal distinctions, "a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921) (Holmes, J.)

 Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 472-473 (1985) (Marshall, J. concurring and dissenting in part).

Marshall's discussion of the social integration of minors and the lack of prejudice against the young might be worth further discussion.

RR

(Suggested by Ed Campanelli)

April 4, 2011 in Courts and Judging, Disability, Equal Protection, Fourteenth Amendment, Games, Interpretation, Theory | Permalink | Comments (0) | TrackBack (0)

Sunday, April 3, 2011

Government Files Opening Brief in Florida Health Reform Appeal

The government on Friday filed its opening brief in Florida v. HHS, the appeal before the Eleventh Circuit of Judge Vinson's (N.D. Fla.) ruling that federal health reform is unconstitutional.  (Thanks to the ACA Litigation Blog for the link to the brief.  Recall that Judge Vinson ruled that the individual health insurance mandate was unconstitutional, that it was not severable from the rest of the Affordable Health Act, and that the entire Act was therefore unconstitutional.  Our last post on the case is here.)

The government's core arguments are by now familiar; there are no major surprises.  There's just one new piece to the appeal, based on Judge Vinson's sweeping ruling: The government argues that his ruling that the entire Act is unconstitutional (because the individual mandate is not severable) goes too far, and that he fails to address several plaintiffs' lack of standing.  (These arguments begin on page 55 of the brief.)

Here are the point-headings from the Table of Contents:

I.    The Minimum Coverage Provision Is a Valid Exercise of Congress's Commerce Power.

    A.    The minimum coverage provision regulates the way people pay for health care services, a class of economic activity that substantially affects interstate commerce.

        1.    The minimum coverage provision regulates the practice of obtaining health care services without insurance, a practice that shifts substantial costs to other participants in the health care market.

        2.    The minimum coverage provision is essential to the Act's guaranteed-issue and community-rating insurance reforms.

    B.    The minimum coverage provision is a necessary and proper means of regulating interstate commerce.

        1.    The provision is plainly adapted to the unique conditions of the health care market.

        2.    Congress can regulate participants in the health care market even if they are not currently "active" in the insurance market.

        3.    The minimum coverage provision regulates economic activity as part of a broad regulation of interstate commerce, and bears no resemblance to the statutes in Lopez and Morrison.

II.    The Minimum Coverage Provision Is Also Independently Authorized by Congress's Taxing Power.

III.    The District Court Impermissibly Departed from Controlling Doctrine in Declaring the Affordable Care Act Invalid in Its Entirety and in Awarding Relief to Parties Without Standing.

SDS

 

April 3, 2011 in Cases and Case Materials, Commerce Clause, Congressional Authority, News, Recent Cases, Standing, Taxing Clause | Permalink | Comments (0) | TrackBack (0)

Rethinking the Veil: West Virginia Weekend

The boundaries between religion and government are struggles in every state and nation, not only in the current conflicts in the Middle East, but also in West Virginia.  WV Weekend Logo

In Turkey, the practice of veiling or the wearing of headscarves has conflicted with the constitutional mandates of strict securalism.  It is this conflict that is the subject of Professor Valorie K. Vojdik's article, Politics of the Headscarf in Turkey: Masculinities, Feminism, and the Construction of Collective Identities, 33 Harv. J. L. & Gender 661 (2010).

Vojdik writes:

Veiling has multiple meanings that can be understood only by closely examining its social and historical context in a particular location and time.  The headscarf is not solely a religious symbol or practice, nor its regulation merely an issue used to construct power relations between men and women, because secularists and Islamists, between the West and political Islam.

Id. at 663.  Vojdik argues that in "Turkey, the headscarf issue is a proxy for political struggle between secularists and Islamists. Covering constructs boundaries of identity and difference—boundaries between men and women, between Turkish secular elites and political Islamic leaders, and between the global West and transnational Islam. Yet women have been critical agents in this debate." Id.. at 663-64. 

399px-Dame_turque_voilée Professor Vojdik provides a brief history of veiling and discusses the decisions of the Turkish Constitutional Court and the European Court of Human Rights upholding bans on headscarves, but her major emphasis is looking "beyond a rights-based analysis"  to the social and political context of the Turkish ban on veiling. To this end, Vojdik looks to the present role of Turkish women in the headscarf debate.

Ultimately, the author concludes that

 [b]oth secularists and Islamist political parties have used the veil, and the regulation of women’s bodies, to embody competing notions of the state and national identity.  This local struggle for a hegemonic masculinity constructs local gender relations, yet it is also part of the historical and contemporary struggle between the West and Islam.

 Id. at 684.  By concentrating on Turkey, a nation that is constitutionally secular but with a deep religious history and thus similar to the United States, Vojdik illuminates the gendered boundaries between religion and state.

RR

with J. Zak Ritchie

[image: Ottoman woman in a veil, circa 1880s, courtesy NY Public Library Collection via]

April 3, 2011 in Comparative Constitutionalism, Free Exercise Clause, Gender, Scholarship | Permalink | Comments (1) | TrackBack (0)

Footnote of the Day: The Opera Skirmish and a Taxonomy

In her dissenting opinion in Minnesota v. Carter, 525 U.S. 83 (1998), deciding the extent of the Fourth Amendment protection to guests in the home,  Justice Ginsburg includes the following footnote:

Justice SCALIA's lively concurring opinion deplores our adherence to Katz. In suggesting that we have elevated Justice Harlan's concurring opinion in Katz to first place, see ante, at 477, Justice SCALIA undervalues the clear opinion of the Court that “the Fourth Amendment protects people, not places,” 389 U.S., at 351, 88 S.Ct. 507. That core understanding is the leitmotif of Justice Harlan's concurring opinion. One cannot avoid a strong sense of déjà vu on reading Justice SCALIA's elaboration. It so vividly recalls the opinion of Justice Black in dissent in Katz. See 389 U.S., at 365, 88 S.Ct. 507 (Black, J., dissenting) (“While I realize that an argument based on the meaning of words lacks the scope, and no doubt the appeal, of broad policy discussions and philosophical discourses ..., for me the language of the Amendment is the crucial place to look.”); id., at 373, 88 S.Ct. 507 (“[B]y arbitrarily substituting the Court's language ... for the Constitution's language ... the Court has made the Fourth Amendment its vehicle for holding all laws violative of the Constitution which offend the Court's broadest concept of privacy.”); ibid. (“I will not distort the words of the Amendment in order to ‘keep the Constitution up to date’ or ‘to bring it into harmony with the times.’ ”). Justice SCALIA relies on what he deems “clear text,” ante, at 477, to argue that the Fourth Amendment protects people from searches only in the places where they live, ante, at 476. Again, as Justice Stewart emphasized in the majority opinion in Katz, which stare decisis and reason require us to follow, “the Fourth Amendment protects people, not places.” 389 U.S., at 351, 88 S.Ct. 507.

525 U.S. 83,111 n.3 (Ginsburg, J. dissenting).  

Manet's Opera While this footnote may not seem especially unusual, Professor Jay Wexler reports that it was part of what he came to think of as the footnote skirmish between Justice Ginsburg, for whom he was clerking, and Justice Scalia, both of whom are opera fans and would have particular reactions to the word "leitmotif."  In the responsive footnote in his concurring opinion, Scalia retorts:

In saying this, I do not, as the dissent claims, clash with “the leitmotif of Justice Harlan's concurring opinion” in Katz, post, at 484, n. 3; au contraire (or, to be more Wagnerian, im Gegenteil ), in this regard I am entirely in harmony with that opinion, and it is the dissent that sings from another opera.

525 U.S. 83,98 n.3 (Scalia, J. concurring).

Wexler reports that there may have been talk of an escalation of the opera references, but that this did not come to pass.

Wexler's article, Justice Ginsburg's Footnotes, 43 New Eng. L. Rev. 857 (2009), draft available on ssrn, not only contains his remembrance of this incident, but also has a useful taxonomy of footnotes.  He then organizes Ginsburg's footnotes accordingly:

Wexler Ginsburg's FNs
Wexler's taxonomy is a useful one for thinking about - - - and teaching - - - cases in which there are footnotes, which now seem to be all cases.

RR

[image: Édouard Manet, Masked Ball at the Opera, 1873 via]

April 3, 2011 in Fourth Amendment, Games, Music, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)