Re: Good News

1

Too close for comfort. Damn, it stinks that Roberts is on that court.


Posted by: Bostoniangirl | Link to this comment | 06-12-08 8:46 AM
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Where's the DC gun law decision? That one could be a surprise fundraiser for one party, or both, this year.


Posted by: Flippanter | Link to this comment | 06-12-08 8:52 AM
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Also, why didn't the article include the name of the case?


Posted by: Bostoniangirl | Link to this comment | 06-12-08 8:52 AM
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"The laws and Constitution are designed to survive, and remain in force, in extraordinary times."

It's a bit depressing this has to be stated.


Posted by: Ginger Yellow | Link to this comment | 06-12-08 8:58 AM
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It's a bit depressing this has to be stated.

It's a bit depressing that four Supreme Court justices don't think so. I wait to see what the House of Lords, god help us, does with the 42 day detention bill over here. I'm betting they'll be better than the Commons.


Posted by: OneFatEnglishman | Link to this comment | 06-12-08 9:01 AM
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Aaand Kennedy gets another opportunity to convince himself that he's a principled, non-ideological jurist.


Posted by: Minivet | Link to this comment | 06-12-08 9:05 AM
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President Bush has said he wants to close the facility once countries can be found to take the prisoners who are there.

why can't they be imprisoned here on the mainland?


Posted by: Michael | Link to this comment | 06-12-08 9:06 AM
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6: better'n him not trying to convince himself of that.


Posted by: Sifu Tweety | Link to this comment | 06-12-08 9:06 AM
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Depressing? Well, I'll take what I can get, being thankful for the five. Thanks for the news.


Posted by: grackle | Link to this comment | 06-12-08 9:08 AM
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7: Because then the Constitution would apply. God forbid!


Posted by: Di Kotimy | Link to this comment | 06-12-08 9:09 AM
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I think it's another arrow in their legal quiver that Guantanamo is technically not US soil.

Anybody remember the Fabulous Furry Freak Brothers comic where they find secret US government opium poppy fields in Mexico? They're discovered, captured, and about to be shot. They protest that they have rights. The officer says, "Wrong, bub! That only applies in the US of A! Outside the US, we can do whatever we want with you!"

To think I thought that far-fetched when I read it.


Posted by: Minivet | Link to this comment | 06-12-08 9:09 AM
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5: Do you think that the Government will try to use the Parliament Act to pass it anyway?


Posted by: Bostoniangirl | Link to this comment | 06-12-08 9:16 AM
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"The game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. . . . The Nation will live to regret what the Court has done today. I dissent."

No, fuck YOU Nino.


Posted by: Ugh | Link to this comment | 06-12-08 9:18 AM
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It's beyond disturbing that four justices saw fit to dissent, but since the case could have gone the other way, this really is good news.

(Moment of wifely devotion: Mr MC worked on this case, and he's pretty psyched about the decision).


Posted by: Mary Catherine | Link to this comment | 06-12-08 9:19 AM
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I've been waiting to find out what one of our most thinly-veiled pseudonymous commenters thinks about this case for over an hour, and I'm still waiting.


Posted by: washerdreyer | Link to this comment | 06-12-08 9:22 AM
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Having rechecked that person's blog, s/he says something slightly surprising.


Posted by: washerdreyer | Link to this comment | 06-12-08 9:23 AM
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12. Too soon to tell. If it gets amended out of shape now I think they have to wait till the next session to try again. A lot can happen in that time. Also we don't know what their strategy on calling an election is - remember they can hold it any time they like up to spring 2010. If they want to go next year, they might not want too much contraversial stuff in play. Watch this space.


Posted by: OneFatEnglishman | Link to this comment | 06-12-08 9:24 AM
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Sincere congratulations to Mr MC (assuming he was on the right side).


Posted by: OneFatEnglishman | Link to this comment | 06-12-08 9:26 AM
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I'd like to dub this the "No Shit, Sherlock Decision of Aught Eight." If someone hasn't already.


Posted by: ed | Link to this comment | 06-12-08 9:27 AM
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is "The Nation" a term of art that all lawyers use in these cases, or is Scalia trying to encourage fascist sentiments?


Posted by: peter | Link to this comment | 06-12-08 9:29 AM
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5-4.

I'll take it, but Jesus Christ.


Posted by: politicalfootball | Link to this comment | 06-12-08 9:34 AM
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(assuming he was on the right side)

He was!

Scalia's "America is at war with radical Islamists" is quite creepy. That's the language of the warbloggers...in a Supreme Court decision! (dissent from the decision, that is).


Posted by: Mary Catherine | Link to this comment | 06-12-08 9:36 AM
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I'm pretty sure that Scalia has passed into crazy old man territory. Of course, we might have to live another twenty years with him anyway.


Posted by: ogged | Link to this comment | 06-12-08 9:41 AM
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Yeah, Scalia's dissent is pretty shocking stuff at times.

And despite the fact that he's showboating, yay Kennedy.


Posted by: NCProsecutor | Link to this comment | 06-12-08 9:42 AM
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This decision, on the other hand, sucks. The outcome was expected, but fuck, it had to be the same day as the good news.


Posted by: Katherine | Link to this comment | 06-12-08 9:46 AM
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Actually, here's the real link to the sucky decision.


Posted by: Katherine | Link to this comment | 06-12-08 9:48 AM
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The form of that url ain't no prize, neither. Try this.


Posted by: Sifu Tweety | Link to this comment | 06-12-08 9:48 AM
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Pwnedy pwnedy.


Posted by: Sifu Tweety | Link to this comment | 06-12-08 9:48 AM
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Jeez, I had no idea Scalia was 72. He must have Reagan's hairdresser.


Posted by: Minivet | Link to this comment | 06-12-08 9:49 AM
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26, 27: If you're too busy to parse the legalese


Posted by: apostropher | Link to this comment | 06-12-08 9:52 AM
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The game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief...

Vaffanculo, Nino. "The Nation" doesn't have a commander in chief. The armed forces have one, and he is accountable to the Congress, the courts, and the electorate.

My elation over this decision is tempered by the fact that it took six years and innumerable backward steps along the way, and of course by the fact that four sitting justices dissented.


Posted by: Knecht Ruprecht | Link to this comment | 06-12-08 9:52 AM
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Well, I'm pretty elated. Now they can be tried according to std rules of evidence, and Obama can set them free. Along with KSM ?? Will this affect that trial?

25:I don't understand. I know it's probably about custody, but if the two violated Iraqi criminal law, I don't grounds for the US to interfere.

Roberts is creepy. Scalia is a horror. Dracula vs werewolf.


Posted by: bob mcmanus | Link to this comment | 06-12-08 10:00 AM
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32: On grounds that they would be tortured, I think. Judging from the AP article SCOTUS has decided that the MNF not being the same as the US military, they aren't required to consider this the way the US government would in normal extradition cases.


Posted by: Minivet | Link to this comment | 06-12-08 10:03 AM
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Never mind, that's the government's argument, not the court's decision. I'll shut up now, it seems complicated and IANAL.


Posted by: Minivet | Link to this comment | 06-12-08 10:04 AM
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Scalia in full froth mode, from his dissent:

The enemy began by killing Americans and American allies abroad: 241 at the Marine barracks in Lebanon, 19 at the Khobar Towers in Dhahran, 224 at our embassies in Dar es Salaam and Nairobi, and 17 on the USS Cole in Yemen.

Because, you know, all those ter'rists are the same.



Posted by: politicalfootball | Link to this comment | 06-12-08 10:16 AM
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Touchingly naive, mcmanus. The U.S. is not without influence in the Iraqi legal system. The Iraqi court's decision to charge Omar came after his habeas petition was filed & probably as a direct result of it; Munaf's original conviction was fishier still, complete with a U.S. coast guard member making claims about the Romanian gov't requesting that Munaf be executed that the Romanian gov't denied. (Fortunately, the Iraqi appeals court decided it was fishy & vacated the death sentence, at least for now.) And then there's the torture issue--Roberts' language on that is chilling, though the concurrence did the best it could to limit the damage.

It's also funny how, with all this deference to the Iraqi legal system's authority on Iraqi soil, Coalition Provisional Order 17 remains in full effect as far as U.S. mercenaries are concerned.


Posted by: Katherine | Link to this comment | 06-12-08 10:18 AM
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MNF not being the same as the US military

A question to the lawyers in the room: Can the Solicitor General's office take positions that are inconsistent with one another in different cases and not have it come back to bite them? Let's say, for example, that a case came before the court where the administration wanted to argue that the MNF was ultimately under U.S. authority (because, say, Congress passed a statute that U.S. troops can never served in combat under a non-U.S. command). Could the legal adversary confront the government with the inconsistent position that it took in another case? Would it matter? Is it likely to be dispositive?

In my line of work, we do some expert testimony from time to time around certain issues, and our clients' lawyers always vet the record very carefully to make sure that none of us has ever testified to something that would be in tension with the arguments we are making on behalf of the client. The idea that you could choose random, improbable arguments just because they are convenient, and drop them at the next occasion ("The VPOTUS is part of the legislative branch, so the rules of the executive branch don't apply! No, he's part of the executive, he enjoys executive privilege!") is really foreign to me.


Posted by: KR | Link to this comment | 06-12-08 10:22 AM
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35: He left out the bombing of Pan Am 103. Now there's a curious, pregnant omission...

That's the language of the warbloggers...in a Supreme Court decision!

I would not be in the least surprised if at least one Scalia clerk were a current or former warblogger. In fact, I would be surprised if this were not the case.


Posted by: KR | Link to this comment | 06-12-08 10:26 AM
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35: Wow. Just.... wow. Scalia really is a hack. If he were a blogger, he'd be third tier at best and drooling over the possibility of InstaPundit links. Instead, he's on the Supreme Court. Brillant.


Posted by: NBarnes | Link to this comment | 06-12-08 10:30 AM
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Could the legal adversary confront the government with the inconsistent position that it took in another case? Would it matter? Is it likely to be dispositive?

If you take a position in one case and win, the doctrine of judicial estoppel generally precludes you from taking the opposite position in a subsequent case.


Posted by: Di Kotimy | Link to this comment | 06-12-08 10:31 AM
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One of my favorite bits of Scalia reasoning is when he says One need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know that the threat is a serious one.

Or watch Fox News! I suspect this is an example of some named logical fallacy, but can't come up with it (maybe just a variant of Argument from Authority).


Posted by: JP Stormcrow | Link to this comment | 06-12-08 10:34 AM
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I love Souter's concurrence responding to the dissent's horrendously dishonest suggestion that hearing the habeas petition was premature because the detainees had yet to exhaust their "statutory remedies." The response to the dessent's complaints of a judicial power-grab is appropriately condescending:

The several answers to the charge of triumphalism might start with a basic fact of Anglo-American constitutional history: that the power, first of the Crown and now of the Executive Branch of the United States, is necessarily limited by habeas corpus jurisdiction to enquire into the legality of executive detention. And one could explain that in this Court's exercise of responsibility to preserve habeas corpus something much more significant is involved than pulling and hauling between the judicial and political branches. Instead, though, it is enough to repeat that some of these petitioners have spent six years behind bars. After six years of sustained executive detentions in Guantanamo, subject to habeas jurisdiction but without any actual habeas scrutiny, today's decision is no judicial victory, but an act of perseverance in trying to make habeas review, and the obligation of the courts to provide it, mean something of value both to prisoners and to the Nation.


Posted by: Grumps | Link to this comment | 06-12-08 10:38 AM
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One of my favorite bits of Scalia reasoning is when he says One need only walk about buttressed and barricaded Washington, or board a plane anywhere in the country, to know that the threat is a serious one.

"You can tell that you should be afraid because people want you to be afraid."


Posted by: Sifu Tweety | Link to this comment | 06-12-08 10:42 AM
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I know ir's all corrupt and gamey over there, but if the MNF and Iraqis can give a reasonable pretense of Iraqi independence & sovereignty I thought SCOTUS would have to handle it as a question of law rather than question of fact.

And I think I understand how this decision might implicate stuff like Bagram and other "prisons" overseas, rendition etc. But for example, in those cases involving the seizing of those guys in Italy and Macedonia I am not sure SCOTUS has much jurisdiction.


Posted by: bob mcmanus | Link to this comment | 06-12-08 10:48 AM
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44 brings a question to mind. In the situation where a detainee is grabbed in Milan by CIA and flown to Syria in a private jet, is the detainee ever under American law?

Is an American plane or ship American territory?


Posted by: bob mcmanus | Link to this comment | 06-12-08 10:51 AM
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If you acccept John Yoo's interpretation of Article III of the Convention Against Torture & the 1998 FARR Act, no. If not, yes.


Posted by: Katherine | Link to this comment | 06-12-08 11:04 AM
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Is an American plane or ship American territory?

Important question.


Posted by: Grumps | Link to this comment | 06-12-08 11:07 AM
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48

Here's Lederman

But as far as I can tell just yet, the Court did not reach the two even more important questions:

1. Whether the Constitution applies to detainees held outside GTMO; and

2. What the substantive standard for detention is: "It bears repeating that our opinion does not address the content of the law that governs petitioners’ detention. That is a matter yet to be determined."

So much for Bagram. so far? How far along are we on this after 6 years? Jeez.


Posted by: bob mcmanus | Link to this comment | 06-12-08 11:15 AM
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37: The SG's office usually tries pretty hard not to change positions before the Supreme Court unless it has to (including thinking out the implications of a position before it takes one), and certainly not to take inconsistent positions at the same time. This is mostly to preserve the government's credibility; estoppel (see 40) is theoretically possible but hard to establish against the government. Certainly it's fun for opposing counsel to be able to cite the government's own briefs back at it. I'm pretty sure inconsistent positions at the trial (and to some extent the intermediate appellate) level are much more common.

Significant changes of position are, of course, common when the party of the President changes. I don't think too many judges or Justices would be angry or upset with the SG for that -- what are you going to do? -- but they might give a position less weight as "the views of the Executive Branch" if it goes back and forth every time there's an election. Affirmative action is a good example there.

For an interesting story about a career OSG attorney who pushed back hard against a change of position by the Reagan administration, Google ("lawrence wallace" "acting solicitor general" reagan irs footnote).


Posted by: widget | Link to this comment | 06-12-08 11:15 AM
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47:Well, I used the words "private jet" those particular cases in 45, which I think was the case, for a reason. An American warship is AFAIK more American terrirory than a contractor's airplane. Not sure on the status of Bagram. This seems an important aspect of today's Gtmo decision, but Lederman seems to say it isn't generalizable for some reason.

I vaguely remember some previous standard being "area under American control"


Posted by: bob mcmanus | Link to this comment | 06-12-08 11:21 AM
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U.S. control certainly should be the test. If the private jet is under contract by the CIA & full of CIA agents, it's a U.S. jet. If a prisons' Afghan guards take all their orders from U.S. interrogators, it's a U.S.-run prison. The S.Ct. is inclined to accept executive bullshiting that sort of thing but there's no reason right-thinking citizens should regard it as anything other than bullshit. (Aren't I supposed to be proceduralist-rule-of-law-liberal giving too little weight to the substantive consequences here?)


Posted by: Katherine | Link to this comment | 06-12-08 11:25 AM
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I can't find the predictions thread, so I'm putting this here: Scalia won't make it through Obama's first term. Ogged's comment above about "crazy old man territory" might have been offered in jest, but Nino really does seem to be losing it. He's heading into late-stage Roger Taney territory.


Posted by: ari | Link to this comment | 06-12-08 11:27 AM
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43: "You can tell that you should be afraid because people want you to be afraid."

Exactly. Shorter Scalia: "It is serious because the color is Orange." (I went and looked it is Yellow, with Orange for airlines, I lost track of whether they still did them, will they begin to get publicized again before the election? At the end of the day "fear" (in several guises) is all the Repubs are going to have going for them.)


Posted by: JP Stormcrow | Link to this comment | 06-12-08 11:31 AM
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OT, but while I was a Balkin's I noticed This on the Vice-Presidency and didn't like it much.

The President does not appint the VP. The delegates at the convention choose the VP, and have defied the Presidential candidate at times. (This is not a plug for HRC, but an argument for democracy over monarchy.) Then the electors elect the VP separately from the President, and the Congress certifys separately from the President. I don't remember anything in the Constitution that states the the VP is "...constitutionally subordinate to the elected president." IOW, I think Cheney was mostly correct.

The Constitutional role of the Vice-President may be anachronistic and very ambiguous if you like, but tradition is not law.


Posted by: bob mcmanus | Link to this comment | 06-12-08 11:33 AM
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Speaking of reasons to vote Democrat in November, I assume everyone's already seen the Obama monkey doll and the Fox "baby mama" clip.


Posted by: strasmangelo jones | Link to this comment | 06-12-08 11:34 AM
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Nino really does seem to be losing it.

Scalia has always been a nut. This "conservative intellectual" thing was a media invention.


Posted by: politicalfootball | Link to this comment | 06-12-08 11:38 AM
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51:(Aren't I supposed to be proceduralist-rule-of-law-liberal giving too little weight to the substantive consequences here?)

read or whomever, note again that I don't start these personal fights. Tho I always get blamed for them.


Posted by: bob mcmanus | Link to this comment | 06-12-08 11:39 AM
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52: Great prediction, I'd second it but don't want to jinx it. I favor hastening the process by everyone always calling him Associate Justice Scalia, because you know it just tears him up inside.

The scene in the Chambers I am waiting for:

"Villains!" he shrieked, "dissemble no more! I admit the deed! -- tear up the planks off these robes! -- here, here! -- it is the beating of this hideous heart!"

Posted by: JP Stormcrow | Link to this comment | 06-12-08 11:40 AM
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"crazy old man territory" might have been offered in jest

No, I think it's true. Whether it's due to aging, or being passed over for Chief, or what, I'm not sure. But I think you're right that Scalia isn't going to be long-lived, although I'm not sure he's going to kick it in four years.


Posted by: ogged | Link to this comment | 06-12-08 11:43 AM
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This "conservative intellectual" thing was a media invention.

You can tell he's real smart, because he always sounds like such a dick!


Posted by: strasmangelo jones | Link to this comment | 06-12-08 11:43 AM
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I'm not sure he's going to kick it in four years.

Fingers crossed!


Posted by: Sifu Tweety | Link to this comment | 06-12-08 11:44 AM
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I think you're right that Scalia isn't going to be long-lived

Why would God start caring about earthly justice now?


Posted by: strasmangelo jones | Link to this comment | 06-12-08 11:45 AM
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55: The monkey doll I had not seen. That's pretty remarkable.


Posted by: politicalfootball | Link to this comment | 06-12-08 11:45 AM
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(Incidentally, isn't it interesting that lifetime appointments to the Supreme Court set up this conflict in the otherwise pretty solid "it isn't appropriate to wish for someone's death" heuristic?)


Posted by: Sifu Tweety | Link to this comment | 06-12-08 11:46 AM
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God has succumbed to Obama's charisma.


Posted by: Walt Someguy | Link to this comment | 06-12-08 11:46 AM
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No, I think it's true. Whether it's due to aging, or being passed over for Chief, or what, I'm not sure.

I think this elides the difference between dementia and an old man confused by a changing world. Scalia's the latter.


Posted by: SomeCallMeTim | Link to this comment | 06-12-08 11:48 AM
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We're not talking about god, Stras, so much as the devil, who has a say in these things as well.


Posted by: ari | Link to this comment | 06-12-08 11:50 AM
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I agree with both ogged and PF. I think Scalia has always been a nut, and I think he's entered that 'crazy old man' territory where he no longer even pretends to not be a nut.


Posted by: Mary Catherine | Link to this comment | 06-12-08 11:51 AM
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39: The only confirmed blogging Supreme Court clerk for OT 2007 is O'Connor's. One of Roberts's clerks for next term was also a blogger.


Posted by: Amber | Link to this comment | 06-12-08 11:52 AM
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Someone should put that idea out there, that Scalia's dissent shows that Scalia is an old man confused by a changing world. If we could get that idea attached to him, it would torment him endlessly.


Posted by: Walt Someguy | Link to this comment | 06-12-08 11:53 AM
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the difference between dementia and an old man confused by a changing world

Not necessarily mutually exclusive categories!


Posted by: apostropher | Link to this comment | 06-12-08 11:58 AM
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Antonin Scalia, in his dissent in the Louisiana creation science case, Edwards v. Aguillard in 1987:

two scientists, a philosopher, a theologian, and an educator ... insist that creation science is a strictly scientific concept that can be presented without religious reference. ... At this point, then, we must assume that the Balanced Treatment Act does not require the presentation of religious doctrine.

Arguing that there is a secular reason for teaching creation science, Scalia says:

The Louisiana Legislature explicitly set forth its secular purpose ("protecting academic freedom") in the very text of the Act. ... The legislature wanted to ensure that students would be free to decide for themselves how life began, based upon a fair and balanced presentation of the scientific evidence -- that is, to protect "the right of each [student] voluntarily to determine what to believe (and what not to believe) free of any coercive pressures from the State." ... The legislature did not care whether the topic of origins was taught; it simply wished to ensure that when the topic was taught, students would receive "'all of the evidence.'"

And this line, just because it cracks me up:

Today's religious activism may give us the Balanced Treatment Act, but yesterday's resulted in the abolition of slavery, and tomorrow's may bring relief for famine victims.

You really can't do this dissent justice by excerpting it. Scalia is, was and always shall be a crank.


Posted by: politicalfootball | Link to this comment | 06-12-08 12:16 PM
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72: I the sound of that line about the tyranny of the State teaching kids science next to the one in his dissent in Lawrence v. Texas about how if the government can't lock up gay people, how will it ever be able to punish masturbators?


Posted by: strasmangelo jones | Link to this comment | 06-12-08 12:27 PM
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Please God, let Scalia be the next federal judge to be caught hoarding freaky p()rn. And if it's not too much to ask, could you have it involve some cognitively mature and voluntarily consenting, but nevertheless legally underage models? And Nino's face is clearly visible in at least some of the footage?

ktx, KR.


Posted by: Knecht Ruprecht | Link to this comment | 06-12-08 12:50 PM
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74: PS, a foursome with Thomas, Alito, and Roberts would also be fine.


Posted by: JRoth | Link to this comment | 06-12-08 1:17 PM
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The headline is "habeas for Gitmo, woohoo!" and my only hesitation is over what exactly that means, procedurally. Not to downplay the symbolic significance of admitting that the Constitution counts, because that's huge, but I can't tell from a first read of the majority (and a bit of the interweb commentary) what kind of process these detainees will actually get and how it differs from the statutory scheme that just got struck down. For instance, they don't have to exhaust the military commission process before seeking habeas review, but they do have to wait a "reasonable" length of time. Huh? And the substance of the law that the habeas court will apply is deliberately not spelled out. Okay...

And that looks to be the meat of Roberts's dissent (I'm still working on Scalia, and so far I agree that it looks like crazy-old-man rantings). Roberts, though, doesn't begrudge anybody reasonable process, it seems to me, he just thinks they already had it. And, of course, he does undervalue the symbolic value of affirming the Constitution. He's cranky about stepping on the political branches for what he thinks is no good reason, treating that like a much bigger outrage than the above-the-law status that the administration tried to get by going to Gitmo.

Anybody who can explain what I'm missing, I'd be happy to be corrected.


Posted by: Mother's Younger Brother | Link to this comment | 06-12-08 1:36 PM
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let Scalia be the next federal judge to be caught hoarding freaky p()rn

No, because then I'd have to defend him. But Roberts should feel free to have a seizure while he's pulling out of the Supreme Court parking lot at the precise moment that Scalia is walking in front of his car. I'm sure you'll agree with this, Knecht.


Posted by: ogged | Link to this comment | 06-12-08 1:36 PM
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that looks to be the meat of Roberts's dissent

Right, he argues that they already had a procedure and now that's been replaced by a mandate for the district courts to decide new procedures ad hoc. What that ignores is that these people have been locked up for six years (as Souter points out) and that the previous procedures (which the court had supported) were shit and a sham.


Posted by: ogged | Link to this comment | 06-12-08 1:39 PM
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74
And if it's not too much to ask, could you have it involve some cognitively mature and voluntarily consenting, but nevertheless legally underage models? And Nino's face is clearly visible in at least some of the footage?

I'm pretty sure that those are mutually exclusive.


Posted by: Cyrus | Link to this comment | 06-12-08 1:44 PM
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78: I haven't read the thread, but let's just hope that none of these seizure-induced accidents happen before Bush leaves office.


Posted by: Bostoniangirl | Link to this comment | 06-12-08 1:46 PM
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I'm sure you'll agree with this, Knecht.

I'm torn. I think there is a morally relevant distinction between delighting in someone else's suffering and having a purely instrumental wish for someone to die or become incapacitated because it is the only plausible mechanism (apart from my disgrace/impeachment scenario in 74) to remove them from an office from which they are inflicting great harm on humanity. I think I'll stick to wishing for Scalia to be secretly videotaped in a swinger's club with Alito's daughter.


Posted by: Knecht Ruprecht | Link to this comment | 06-12-08 1:47 PM
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77: Okay, the military commissions are shit and a sham. I guess I'm just not sure that what we'll get instead will be any better, given the total lack of guidance.

Also, yes--these people have been locked up for six years. Now, somebody will file a habeas petition, and (given the absence of governing law) whatever the outcome is it will be appealed, remanded, re-appealed, and probably produce another cert petition. At this rate, we don't have to worry about Nino checking out during Obama's first term; the problem won't be solved in that time anyway.

Again, I'm 100% for the concept of closing the abomination that was the Gitmo loophole. It's a disgrace, a national embarrassment. I just wish we could have replaced it with something. I guess that's the price you pay for getting AMK in your majority, though.


Posted by: Mother's Younger Brother | Link to this comment | 06-12-08 1:48 PM
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BTW, much as I will dance with unalloyed joy at the untimely-I-hope passing of any of the 4 No votes on this matter, likely more imminent* is the replacement of Self-Regarding "Centrist" Kennedy with a real liberal. With that plus Stevenson, now you've got a pretty reliable liberal majority.

I just hope BHO has the balls ovaries non-threatening characteristic to nominate some real liberals.

Mayhap Napí? Or Katherine - she's younger.

* At least, he's always seemed likely to die sooner; Scalia's hate makes him strong. They are, in fact, the same age.


Posted by: JRoth | Link to this comment | 06-12-08 1:57 PM
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Okay, the military commissions are shit and a sham. I guess I'm just not sure that what we'll get instead will be any better, given the total lack of guidance.

Scalia argues, basically, that we don't know what we're going to get, but whatever it is, it will be better. (That's why he's against it.)


Posted by: politicalfootball | Link to this comment | 06-12-08 1:57 PM
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I know that predicting SCOTUS decisions (or AMK opinions) on hypothetical future cases is pretty much pointless, but could one of the lawyers opine on whether there is likely to be a camel's nose under the tent in this decision? Specifically, I wonder if, now that has been established that the Constitution protects detainees, the door is open to future 14th amendment-based challenges to due process deficiencies. For example, I'm pretty sure that the courts would not tolerate a civilian being tried before a court where the judge is in the same chain of command as the prosecution (and apparenlty subject to dismissal at the behest of the prosecution!). Could post-facto lawsuits clean up whatever egregious procedural flaws are sure to exist in the detainee hearings?


Posted by: Knecht Ruprecht | Link to this comment | 06-12-08 2:06 PM
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86

Where's the DC gun law decision? That one could be a surprise fundraiser for one party, or both, this year.

Yeah, let's take a swing through the Western states talking about how people shouldn't be allowed to have a gun in their own home. Maybe we could push to abolish the mortgage interest deduction while we're at it.


Posted by: gswift | Link to this comment | 06-12-08 2:09 PM
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77 is brilliant. 73-- the 'fun with crazy' part of Scalia's Lawrence dissent I always remember is that in which he proclaims that gay men & lesbians need no equal protection, because we're all so fucking rich. [and, I sem to remember, said without even the appearance of having offered supporting statistical evidence--but ya know, facts smacks, that never stopped Scalia] where's my share?? you hets better start cutting those checks; I'm waiting by my mailbox, with pamphets for new car and great big European vaca in hand......


Posted by: anonymousacademiclesbian | Link to this comment | 06-12-08 2:15 PM
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great big European vaca

That sounds like something on Judge Kozinski's server.


Posted by: KR | Link to this comment | 06-12-08 2:21 PM
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i don't know KR. imho "great big" in a porn title suggests something in particular, and a something in particular that would be particularly unlikely to be found on a lesbian's computer...


Posted by: anonymousacademiclesbian | Link to this comment | 06-12-08 2:27 PM
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Further to 86, I'm really, really not interested is a re-hash of those issues. I'm just saying, maybe the Democrats should shelve certain debates for now and spend the next eight years working on fixing the war, health care, the economy, energy policy, etc.


Posted by: gswift | Link to this comment | 06-12-08 2:33 PM
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83 -- I'm afraid the bike riding lobby would make it impossible for me to get through.

77 -- The wasn't weighing Commissions as an alternative: that system will continue. This is about the 95% of prisoners who will never see a Commission, and although the government can stall and appeal, the reality is that few if any cases will get to that stage before Jan 20, 2009. After that, shepherds, schmoes, and wannabes can and mostly will be released.

76 -- Most of the prisoners have ongoing cases that have been stayed pending this ruling. They'll pick up where they left off -- with requests for discovery and such. Pending motions, like Falesteny's for an injunction requiring compliance with the Geneva Conventions, will be heard and decided one way or the other. Prisoners who don't have habeas cases can decide whether to file.

Here's the Obama statement:

"Today's Supreme Court decision ensures that we can protect our nation and bring terrorists to justice, while also protecting our core values. The Court's decision is a rejection of the Bush Administration's attempt to create a legal black hole at Guantanamo - yet another failed policy supported by John McCain. This is an important step toward reestablishing our credibility as a nation committed to the rule of law, and rejecting a false choice between fighting terrorism and respecting habeas corpus. Our courts have employed habeas corpus with rigor and fairness for more than two centuries, and we must continue to do so as we defend the freedom that violent extremists seek to destroy. We cannot afford to lose any more valuable time in the fight against terrorism to a dangerously flawed legal approach. I voted against the Military Commissions Act because its sloppiness would inevitably lead to the Court, once again, rejecting the Administration's extreme legal position. The fact is, this Administration's position is not tough on terrorism, and it undermines the very values that we are fighting to defend. Bringing these detainees to justice is too important for us to rely on a flawed system that has failed to convict anyone of a terrorist act since the 9-11 attacks, and compromised our core values," said Barack Obama.


Posted by: Nápi | Link to this comment | 06-12-08 2:49 PM
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Yay Napi et al!

I haven't read the thread, but let's just hope that none of these seizure-induced accidents happen before Bush leaves office.

This summer would actually seem like a pretty good time for a SCt retirement (or whatever). I have a hard time imagining that the Senate would confirm a Bush appointee this late in the game, and Obama's honeymoon period ought to be a pretty good time to get a nominee through. And if McCain wins, we're pretty much fucked regardless.


Posted by: Not Prince Hamlet | Link to this comment | 06-12-08 2:58 PM
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92:There is a question of how many items you want on the table, how much the Senate can juggle at once. The conventional wisdom has been three.

I don't know if the conventional wisdom is true, especially with a landslide/coattails/realignment. There have been very busy honeymoons, most of them marked by major mistakes. FDR made his share. LBJ? Reagan? I think it could be dangerous.


Posted by: bob mcmanus | Link to this comment | 06-12-08 4:43 PM
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Dracula vs werewolf

Dracula, every time. Or at least, 29 times out of 30.


Posted by: Trevor | Link to this comment | 06-12-08 5:05 PM
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90: I think the Democrats shelved that particular debate about fourteen years ago. Although living where you do, you must get a lot of propaganda from Republicans implying that the Democrats are more motivated to take away guns than they have ever been before.


Posted by: Ardent reader | Link to this comment | 06-12-08 5:22 PM
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This summer would actually seem like a pretty good time for a SCt retirement (or whatever).

Although Bob makes a decent point in 93, it would be kind of nice for McCain and Obama to have to essentially run on their SC nominees. They'd probably (try to) weasel out of saying, but imagine if they campaigned on, "This is whom I'd appoint/nominate." It would pretty quickly put an end to the pro-choice camouflage that McCain tries to wear in front of Is and Ds.

Of course, Obama would probably be scared to nominate Napí, so fuck it.


Posted by: JRoth | Link to this comment | 06-12-08 9:39 PM
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I'm afraid the bike riding lobby would make it impossible for me to get through.

I wanted to make that joke!

Don't screw with Big Bike. They'll find you with a spoke wrapped around your throat.


Posted by: JRoth | Link to this comment | 06-12-08 9:40 PM
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How much do you love McClatchy?

McCain rebuffed, Obama vindicated by court's Guantanamo ruling

Thursday's Supreme Court ruling that Guantanamo detainees have a constitutional right to challenge their status in U.S. civilian courts is a blow to Republican presidential candidate John McCain and a vindication for Democratic candidate Barack Obama.

That was underscored by the rivals' reactions to the 5-4 opinion.

"It obviously concerns me," McCain said.

Obama applauded the ruling, saying it was a repudiation of "yet another failed policy supported by John McCain."

Although both senators have opposed the use of torture in military interrogations of detainees and advocated closing the Guantanamo Bay facility, they've taken different stances when it comes to detainees' legal rights.

McCain, a former prisoner of war in Vietnam who survived torture, helped shape the Military Commissions Act of 2006. It established a military-commission trial system as an alternative to civilian courts and said that federal courts couldn't consider habeas corpus petitions of detainees at Guantanamo; that is, detainees couldn't challenge in U.S. civilian courts the grounds on which they were being held.

McCain voted for it and Obama voted against it.

The high court struck down that legislation Thursday.


Posted by: apostropher | Link to this comment | 06-13-08 1:11 AM
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