A lot of people have been making a big deal out of this, arguing that referrals of dead-end citizenship cases by conservative Justices could be interpreted as a slight on Obama. Nia-Malika Henderson of Politico even speculated that Thomas’ referral of Donofrio might just be his way of

returning the favor — putting through a case that questions whether Obama should be president, after Obama said [at the Saddeback Forum that] he wouldn’t have picked Thomas for the high court.

We here at the DailyWrit admit that we got caught up in all the drama, even speculating that the conservative bloc might be tacitly participating in a game theory model called “cheap talk signaling” by using these referrals to remind Obama that they still have Judicial Review over the legislation he pushes through a very Democratic Congress. But after reading one too many stories about the referrals, Kedar realized that bloggers might be reading too much into this – mapping partisan politics onto a situation of routine Court procedure. Curious, we sent an e-mail to SCOTUSblogger Lyle Denniston, one of the top SCOTUS authorities in all the land. He graciously responded:

[Donofrio] was a routine referral. The Court formerly allowed repeated applications, even to all nine Justices separately. Because of perceived abuses of that approach, the Court now follows the practice — no matter which Justice gets the second application — to have it go to Conference, to end the Justice-shopping.

The fact of referral in the New Jersey case was totally without significance. The more telling fact, in each of these cases, is that the Court does not even ask for a response. That indicates it believes they are totally frivolous — as anyone who reads the papers will quickly discern.

Sorry, no political intrigue here.

Regards, and thanks for reading the blog,
Lyle D.

This should lay to rest all the rumors that Justice Thomas has an ax to grind with the president-elect. It turns out that the referral was a simple procedural matter of routine. When a petition is denied by a liberal Justice, it is not uncommon for the petitioner to then refile the application with a Justice who is more conservative (and vice-versa); to prevent the petitioner from simply resubmitting again and again, the second petition automatically triggers a referral to conference from the Justice who received that resubmitted application. It just so happens that the Donofrio and Wrotnowski were resubmitted to Justices Thomas and Scalia; thus, it is simply coincidence and nothing more that the cases were referred for Court review by conservative Justices.

But what truly shocked us here at the DailyWrit was how many media outlets – large and small, local and national – dropped the ball on this story. Among those who gravely misinterpreted Court procedure were: Kate Phillips at the Caucus (a blog of The New York Times), Elie Mystal at Above the Law, Earl Hutchinson at The American Chronicle, Les Payne at Newsday, a number of the good folks over at DailyKos, James Wright at New American Media, bloggers at ProgressPolitics, and, as we mentioned, Nia-Malika Henderson at Politico.

Who got it right? Well, Robert Barnes at the Washington Post, Eugene Volokh at his blog, Mr. Denniston, Ben Smith over at Politico, and Wikipedia!

Related posts

• Supreme Court Rejects Question of Obama’s Citizenship (December 8, 2008)
• President Obama and the Future of the Supreme Court (December 4, 2008)
• The In Vogue Word Of The Day: Stare Decisis (June 28, 2007)

On what day of the term was Brown v. Board of Education released? This would represent about as big a shift in the law, in my opinion.

Other people said sillier things but I can only pray that they were jokes by virtue of the fact that they were just that ridiculous. I’m at a loss for words. I really am. What do you say to these people?

If you are in search of real insight into the most important opinion ever released and a written work that will go down in the annals of history alongside the Magna Carta and the Holy Bible, check out Professor O’Shea’s analysis over at Concurring Opinions.

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• Supreme Court Agrees To Hear DC Gun Case (November 20, 2007)
• Looking Ahead to Watson v. US (August 20, 2007)
• DC v. Heller Thoughts and Analysis (June 26, 2008)

Just yesterday, Rudy Giuliani unveiled his ‘Judicial Advisory Committee.’ He’s always had a ‘firm’ policy about ‘strict constructionist‘ and when I went to his site a minute ago, a banner related to the issue took up no less than 1/3 of my screen. His ‘Judicial Advisory Committee’ certainly sounds like a good idea and he packed the committee with some serious judicial minds. One of them even declared “Judges are meant to judge – not make laws. Under Rudy Giuliani, it will stay that way.” How would a democrat counter that kind of rhetoric? The Republicans have framed their side of the story in such a way that the democrats now have a reputation for being everything that the Republicans don’t claim to be- and thats not going to be good for the Democrats in 2008.

The only way for Democrats to ‘take back’ the federal courts is to win elections, and most specifically the President. I don’t expect the democrats to play dead on the judicial issue, and I don’t think they should, but whoever the democratic nominee for President is, they would be ill-advised to make a big deal out of Republican Judicial nominees without seriously reconsidering the rhetoric they use.

Related posts

• Originalism Reconsidered (August 9, 2007)
• If I Hear One More Word About Clarence Thomas And Originalism… (July 12, 2007)
• Surprisingly Candid McCain and Obama Discuss Current SCOTUS Makeup, Nomination Process at the Saddleback Civil Forum (August 17, 2008)

Morse v. Fredrick: HA. This student would have been beaten to death by a teacher. Thomas would support it. Not only would the teacher have won in the Supreme Court, but there wouldn’t be a suit in the first place.

Gonzalez v. Carhart: A women’s right to an abortion?! Not so much. Forget about a woman bringing a suit in court. Women had rights, they just didn’t have the right to question the actions of their state legislature. Griswold found its core by applying the Fourteenth Amendment to the states but there was no Fourteenth Amendment until 1868. Justice Ginsburg’s riveting dissent? Forget it, she wouldn’t be on the Court. Maybe they would have let her write a riveting court transcript?

Ledbetter v. Goodyear: “Sex-based discrimintation? Isn’t that the best kind?” — reads the Opinion of the Court in a 9-0 decision penned by the Court’s most liberal member: Justice Scalia.

Roe v. Wade: Assuming Thomas Jefferson adhered to originalism himself, he would have found that George Washington and John Adams did not acquire more land for the United States through treaties and he was therefore not authorized to buy land from France. This set the precedent for future Presidents and Texas never would have been annexed in 1845. No Roe v. Wade (in US Federal Court, at least.)

Brown v. Board: Thurgood Marshall would never be admitted to the Supreme Court Bar so he never would have given his rather brilliant defense of Brown in this case. Also, a 9-0 court would have somewhat easily squashed the notion that fourteenth amendment equated to protection of people against de facto racism. How can the government force people to get along with one another?

Oh, don’t forget that the Bill of Rights didn’t even apply to the states until the ratification of the 14th Amendment following the Civil War.

Jack Balkin finds fault at Clarence Thomas’s views in some of the latest cases before the Court. Professor Balkin legitimately contends that one form of originalism searches for the meaning of certain words and another searches for the application of those words to real-world scenarios. Where Balkin and I diverge, however, is on the legitimacy of those approaches. Balkin seems to support the search for definitional clarity while disapproving of the search for interpretation- I disapprove of both.I disapprove of the theory of original intent so categorically because of both its theoretical motives and the way in which it is (nearly) always implemented.

The generally accepted intent of originalism is to search for the way in which our forefathers viewed matters and apply those notions to issues today. The problem with looking to our forefathers for advice is that when we try to mimic the past we have to first assume that the past was better than the present in a certain area. In the case of Morse, Justice Thomas makes the assumption that since schools were better when we beat children, we should allow our children to be beaten today. That type of presupposition isn’t nearly as universally accepted as Justice Thomas would like us to believe and he offers no reason for us to join in his logic. Well, I contend that things weren’t better when teachers treated students like pinatas of knowledge. In so many other fields of study, we consider the present to be superior to the past. For example, most people (Justice Thomas included) would say that mankind has made great strides in civil rights. Hopefully Justice Thomas would not roll back the clock on civil rights to say….before the Thirteenth, Fourteenth, and Fifteenth Amendments? Even outside the realm of civil rights, I contend that mankind has made huge strides in closing the socio-economic gap, making food storages more available, and enhancing the role of education in the populous. Even if Justice Thomas disagrees, it is presumptuous at best to assume that the past is always right. If he offered justification for adhering to the past, it would be originalism with arguments from today and I don’t see anything wrong with that (although I imagine I would disagree with his logic.)

If Justice Thomas disagrees with me on this point, he forgets that his opinion never would have been heard because he wouldn’t be a Supreme Court Justice in his own beautiful world. If the Senate chose to follow original intent during his confirmation process, they would have found that neither George Washington nor any of our nations first 35 executives were interested in appointing an African-American to the nation’s highest court. In fact, in order for the Senate to find solace in confirming Justice Thomas, they would have to flip back only 20 years in their history books, making sure to ignore quite a bit of history before then. We wouldn’t know who he was because his role (and mine) as a second-class citizen would have been cemented in society long after the War of Northern Aggression. In reality, why did the Senate confirm Justice Thomas (or Justices Louis Brandeis, Thurgood Marshall, and Sandra Day O’Connor before him)? Because they felt that the American people were ready to buck the trend of racial, gendered, and religious inequality. Our representatives knew that at the time, the American people were ready for something different and acted upon that.

I realize that a lot of people will reply with the predictable response- “The legislature is a political body but the Court is supposed to work with precedent. Therefore, Originalism is simply the purest way to adhere to precedent.” Try not to act surprised– but I disagree. The difference between adhering to precedent and subscribing to originalism is the notion that originalist believe that a single fixed period of time should be our method of evaluating whether or not a given action is appropriate. Adhering to precedent means looking at recent applications of a law and maintaining a constant evaluation. In many cases, originalism and ‘judicial restraint’ are in conflict. (I use the word ‘judicial restraint’ casually but I know it has all sorts of connotations that could spark a war of their own.) For example, Justice Thomas could contend that our founding fathers originally owned slaves and very intentionally did not abolish slavery in the Constitution of 1787. Justice Scalia could come back and say, like he has in the past, that he wishes that we still lived in the good ol’ days, but he has to stick to the way the court’s current (~150 year old) interpretation despite his personal reservations. Both those types of logic have been hailed as conservative hallmarks for decades now but they are obviously contradictory.

This is where my second reservation to originalism comes into play- It appears illogical at best and downright malicious at worst to pick-and-choose at the past for advice in today’s legal arena. Looking at 1787 without looking at every year in between ignores the trials and tribulations of history that Americans have been through. We change over time precisely because we experience things as a nation that force us to change our perceptions and attitudes to actions that we never would have ordinarily considered. Originalism always involves very clear activism on the behalf of a judge who is operating under the disguise of ‘judicial restraint’ and is a blatant use of ‘activism’ that should never, ever be labeled as anything other than a judge using the past to rationalize his true (usually personal) attitude towards a subject. Today, we look at the recent behavior of the court or the trend in interpretation and evaluate decisions based off of that. If Justices have reservations about the current trend, they rule on the facts of the current case as they deem appropriate. I have no idea why we need to act like 1787 is somehow the benchmark for society in 2007. We’ve made great strides in the last 200 years and we certainly hope to better ourselves over time- there is no reason why we should pick that arbitrary date and try to mimic it. Our founding fathers certainly weren’t concerned about adhering to norms of their day. I’d say that American Revolution was quite the act of judicial (political) activism…

Related posts

• Kelo Turns Three Today (June 23, 2008)
• President Obama and the Future of the Supreme Court (December 4, 2008)
• Originalism Reconsidered (August 9, 2007)

Because voters are not required to make a decision until election day, they remain open at this stage in the race to new information, alternative perspectives and late-breaking developments — all of which render today’s poll results, to one degree or another, meaningless.

Consider this: More than two-thirds of the Democrats who voted in the 2004 Iowa caucuses didn’t decide who to vote for until a month before the caucuses. Four in 10 decided in the last week. In 2004, 54% of New Hampshire Democrats decided within a week of the primary. It’s no surprise, then, that in the 2004 election, John Kerry was lagging in third place until only a few weeks before the Iowa caucuses. Kerry then more than doubled his vote in Iowa and nearly quadrupled it in New Hampshire — all in less than 20 days.

Ironically, the authors of the article in question are Mike Murphy and Mark Mellman, two widely connected and respected pollsters. To them, polling at this stage is futile and only serves the interests of political elite (read donors). For more enlightening commentary on this article, see respected poli sci PHD candidate/blogger Jay Cost who manages to talk about physics, business school, Foucault, and the LA times article in the same entry. But for now, Murphy and Mellman miss a few empirical counter examples. First, the two pollsters overstate their thesis a bit when they write

Millions raised, then spent, thousands of staffers, all the early spin, all the early endorsements, and all the early everything else consists mainly of campaigns trying to create metrics by which the media can measure their progress.

For instance, Howard Dean, was not the establishment candidate in 2004 yet his compelling anti-war message resonated. Coupled with his innovative use of the internet as a fund-raising tool, his early swell of support can’t really be attributed to elite’s talking among themselves. Also, even state wide elections have shown how real grass-roots democracy can have large scale political impacts. Jay Cost argues that elites serve to narrow down the choices of available candidates in an election and that’s a good thing. However, that hypothesis can’t explain how Ned Lamont was single handily able to drive Joe Lieberman to the right and essentially force the Democratic party to exile him. Largely supported by the left-wing blogosphere, Lamont won the Democratic Primary in Connecticut in 2006 but lost the general election because his only issue was getting out of the war in Iraq.

Interestingly enough, Cost writes

Elites of all stripes – journalists, pundits, Washington power brokers, donors, and even the well-informed who chime in via the blogosphere – are actively engaged in determining the agenda for the 2008 election, i.e. who shall and who shall not be a candidate worthy of the average voter’s consideration.

So is Dailywrit complicit in this? =O

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Unlike the Republican Party which has one person leading in the first primary states and one person leading in the general election, the Democrats have one person in the lead for both: Hillary. Hillary has a sizable lead in New Hampshire and is a frontrunner in the Iowa Caucus. The biggest benefit that comes with a huge lead in New Hampshire is that she can afford to pull a bit of money from her New Hampshire bid and put it towards Iowa. Barack Obama is polling 2nd in the national polls but has struggled in the first two primary states and John Edwards has done the opposite.

What Will It Take For Clinton To Win?

First (and in no particular order), Mrs. Clinton will have to play Mr. Clinton very well. Mr. Clinton has the potential to serve as a lightning rod of criticism because he is in the public eye more than any of the other candiate’s spouses (see: Sopranos controversy). Not only is he in the spotlight now, but his past actions in office have given Mrs. Clinton 8 years worth of policy decisions to justify (see: an interesting take on Clinton’s midnight pardoning.) A lot of people have commented on his past extra-marital affairs and that has taken a lot of the policy message that Mrs. Cnton was trying to push. The more she lets the media talk about her marital status, the more her administration is going to sound like a 4-year long episode of General Hospital.

Second, Senator Clinton needs to appear moderate to conservatives and liberal to liberals. Conservatives think that she wants to make abortions mandatory and liberals (legitimately) contend that she is either too conservative or too willing to sacrifice her true liberal persuasions if she has them. Recent attention to her personal faith has helped her to this end.

Third, Hillary needs to shed her image of being a rigid politician. She’s taken a few steps in the right direction with her Sopranos video. If she can develop the same cult of personality that Barack Obama has, she is going to build some serious grassroots firepower.

Forth, Hillary needs to act like a frontrunner. In my opinion, she did this excellently during the latest democratic debate. She spoke a lot, but not too much, and she kept a low profile by saying what people wanted to hear and not a word more. If she can cruise to some early wins, she’ll have the momentum it takes to do whatever she wants.

James and I think that Hillary has about a 60% chance of getting the nomination of Al Gore stays out of the mix (as he is increasingly likely to do.) If Gore does throw his hat into the ring, Hillary has a 50% chance of becoming the democratic nominee.

Related posts

• Today Is “Safe Harbor” Day 2008 (December 9, 2008)
• The Obama Rama Party (August 2, 2007)
• The In Vogue Word Of The Day: Stare Decisis (June 28, 2007)

In my opinion, this farce began with SCOTUSblog. They declare the number of cases as 24 in their Super Stat Pack (in which I am cited!!!!) and clearly cite Morse and Watters as cases in which they had to interpret the case so as to push it into the 5-4 column.

As you may recall, in Morse Justice Breyer joined the conservative block but did not join the majority opinion. The majority ruled on the highly-political free speech issue of the case but Justice Breyer opted only to join the judgement and hold that the principal’s qualified immunity did not make a free speech ruling necessary. Breyer ponders the free speech question and seems to have a slight inclination towards protecting free speech but concludes that the issue is not as simple as either side suggests and does not want to rule on the issue in this case. SCOTUSblog’s decision to call this a 5-4 ruling reeks of manipulating statistics to formulate a more startling conclusion. This marginally irresponsible action has been taken without question by other news sources. At best, this ‘judgement’ should be noted when it is taken into consideration and most journalist have failed to do that.

In Watters, Justice Thomas was forced to recuse himself because his son is or was an employee with Wachovia Bank. SCOTUSblog says:

We have decided that Watters is best classified with the 5-4s, as it seems quite likely that had all 9 justices participated, it would have come out this way.

I agree completely with that analysis, but again, they (and other news sources) fail to mention this fact when they cite the total number of 5-4 rulings as 24.

The final ‘judgement call’ came in Limtiaco v. Camacho. In that case, the Supreme Court held that Guam’s maximum level of indebtedness should be evaluated on assessed, not appraised, value. Here is the voting line:

Thomas, J., delivered the opinion for a unanimous Court with respect to Part II, and the opinion of the Court with respect to Parts I, III, and IV, in which Roberts, C. J., and Scalia, Kennedy, and Breyer, JJ., joined. Souter, J., filed an opinion concurring in part and dissenting in part, in which Stevens, Ginsburg, and Alito, JJ., joined.

In the defense of SCOTUSblog and other sources, this is the closest to what could be considered a 5-4 decision. The concurring/dissenting opinion concurs with the court on procedural grounds but dissents on the crux of the case. In the case of Limtiaco, I could see this being called a 5-4.

So ultimately, major media sources have mislead a lot of people by adding a few extra cases to the already large number of 5-4 decisions. It’s hard to say why, or how they all came to the same conclusion, but their evaluation certainly produced interesting analysis. In fact, I think for certain analysis, it would be more appropriate to call these cases 5-4 decisions than to categorize them in other ways. It may only be a subtle affect, but reporting cases as more controversial than they actually are can have a serious effect on jurisprudence. Chief Justice Roberts as well as other members of the court have repeatedly held that the court has a compelling interest in ruling on cases as narrowly as possible. At times, it is appropriate and necessary for justices to rule on issues in a case that may not produce a headline-grabbing opinion. Such was the case in Morse and I think Justice Breyer had a brief fit of brilliance (and perhaps courage) in separating himself from his close friends with liberal tendencies. Categorizing his vote as simply another vote for the liberal block cheapens his contributions to jurisprudence as well as the restraint he showed in ruling on an issue that was neither the most exciting nor the most controversial. But as I said before, sometimes interesting analysis can be produced from a ‘judgement’ calls on data, media sources just need to make it clear how they got there.

Related posts

• Supreme Introductions (December 20, 2008)
• Oral Argument Stats Posted (December 12, 2008)
• Updated Humor Statistics (March 7, 2008)

Turns out Dallas didn’t quite agree with me on the Oakley issue. You can read an article analyzing how Leppert won here. Basically, he’s not gay.

In equally unnewsworthy news, today is the last day of Laura Miller’s tenure as Dallas mayor. She fixed a lot of potholes, built a big homeless shelter (man, that was expensive!), pissed off smokers, presided over some agreement about a ineffectual airport that I really don’t understand, didn’t really do anything about crime, and was generally mediocre at best. You can read an article about her legacy here.

Tom Leppert today announced his intention to make Dallas, one of most business-friendly cities in America, business-friendly. He also wants to make us safer. I for one am enthused by his innovative, unconventional thinking.

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Althouse suggests that

it’s entirely distracting to use the word “hijack,” especially if the problem you’re talking about has nothing to do with what we saw on September 11th but is simply the way some Christians take the conservative side on various issues and, failing to content themselves with mere belief, participate in politics.

I completely agree with what the moderate-to-conservative Althouse says in the last blurb of her piece. Obama’s comments that criticize the teachings of certain religious sects shows that Obama is doing the same dividing that he was deriding so strongly. I take fault at Althouse’s criticism of the use of the word ‘hijack.’ When I read the article, my first reaction was that it was a solid analysis and my second was that he was blatantly hypocritical. Even though we live in decidedly post-9/11 world, the word ‘hijack’ isn’t out-of-bounds and it takes a highly-sensitive and borderline biased eye to deem that he was ‘exploiting tragedy.’ He used the word legitimately and the only person evoking the image of 9/11 here is Althouse. Ann should stick to commenting on women who don’t stand the way she wants them to and the presence of phallic symbols in campaign ads. If any of you aren’t aware, Althouse created a small internet controversy when she interpreted the substitution of carrots for onion rings in Hilary Clinton’s Sopranos parody to be a sly reference to Hilary emasculating Bill. She later hints to the fact that it was simply a cheap trick to attract readers. Awesome. Althouse’s ploy to attract readers to her blog (and by extention increase her AdSense revenue) has ‘worked’ on another ‘unsuspecting’ blogger. I didn’t write about it when the Jessica Valenti incident occurred or even when the Clinton video happened, but Althouse has very efficiently (it only took 3 months!) turned another ‘fan’ to her so-called ‘anti-Althousian’ camp. This other controversy that I keep referencing occurred when she posted about the way Jessica Valenti (of Feministing.com and Colbert Report fame) posed in a picture with former-President Clinton. According to Althouse, Valenti stood upright and apparently exposed her breasts in an exploitive manner. Perhaps a burqa would have been more appropriate?

Wait. Make sure you aren’t drinking anything before you read the next sentence.

She calls herself a moderate.

I’d hate for you to blow milk out of your nose and ruin your lovely keyboard. I’m looking out for you.

Back to Obama’s comments, here are my feelings: Yao is right. His post meanders wonderfully between an anti-religion rant, an anti-Grant Swank rant, and a something-Obama rant. I do think Obama was 100% correct in his comments, but by making them, he is doing the exact ‘evil’ he is trying to combat. Valiant effort Senator Obama, but leave this one to the professionals.

Well, its been a blast. Back to studying and listening to Journey.

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