D.C. v. Heller: Unconstitutionality of D.C. laws affirmed. Decision will be 5-4, with Scalia writing the main opinion and Kennedy concurring (but joining the main opinion as well). Ginsburg will dissent, in which Souter and Stevens will join. Breyer will file a separate dissent.
Davis v. FEC: 5-4 to declare the Millionaires Amendment unconstitutional. Alito for the Court, Breyer in dissent.
A few minutes ago, the Supreme Court issued an opinion, in Kennedy v. Louisiana, that at first glance appears to prohibit imposition of the death penalty for all crimes rather than capital murder. The first link to the 5-4 decision is here. Justice Alito, joined by Chief Justice Roberts and Justices Thomas and Scalia, dissented. More later.
I wasn’t really a fan of his recent work, but his older material skewering nanny state attitudes about profanity and sex was right on target. By way of tribute, here’s a version of his famous “seven dirty words” bit:
Of course, another version of this, broadcast by Pacfica Radio, led to the Supreme Court’s atrocious 5-4 ruling in FCC v. Pacifica Foundation that the federal government can regulate even non-obscene broadcasts that are “indecent.”
As Carlin might say, fuck the FCC.
First, Lou Dobbs is batshit crazy:
CNN’s Lou Dobbs has been on a tear about the recent tainted-tomato salmonella outbreak, but this time he’s taken it a step further and is calling for the ultimate political punishment.
The “Lou Dobbs Tonight” host placed the blame for the recent salmonella outbreak squarely on President George W. Bush, calling for his impeachment on the June 19 broadcast.
More here.
Second, this week is the week for covering U.S. Supreme Court decisions. All of the remaining decisions of the term, including the D.C. guns case and the Louisiana child-rapist death penalty case, will be handed down in the next few days. The madness starts this morning at 10:00am. The folks at SCOTUSblog will be liveblogging the opinion announcements this week, and I shall attempt to provide the most prompt coverage my schedule allows. Also, I’m dedicated to making some discussion of the handful of constitutional cases from the past few weeks that I still haven’t covered, and of updating my admittedly languishing Constitution Cases of 2007-2008 compilation feature. In short, it’s going to be a busy week here on the blog, but a very fun and (hopefully for you readers) interesting one as well.
Every lawyer or law student knows that when it comes to legal research services, whether electronic or in print, Westlaw and Lexis are the only major firms in the business. However, most people in the legal profession also know that over the past few years a number of new, purely net-based companies have entered the fray with aim of crashing the hugely-profitable "Wexis" party. There's a great article on Forbes.com right now about the progress that some of those companies have made and the challenges that remain for them as they try to catch up to Westlaw and Lexis in coverage and functionality. The bottom line: with the building of “open” electronic databases of newly released cases, the use of cheap foreign labor to slowly but steadily transcribe the text of old cases, and advances in computer science search algorithms, competitors like Casemaker (with its useful but buggy and incomplete service offered through state bar associations) are gaining some traction.
I’ve always wondered why one of the many search or content providers out there on the net hasn’t taken up the opportunity of creating a legal source search engine and database. Start up costs would be quite low –compared to the usual start up tech service—, any tech company worth its salt could offer much more useful search technology than Westlaw or Lexis currently provide, and lawyers are an attractive demographic for advertisers. Alas, my dream of being able to use Google Law Search (substitute your favorite search provider) to quickly find relevant sources of law at little or no cost doesn’t look like it’s going to come true anytime in the foreseeable future, but here’s hoping that one of the competitors that are making the attempt will soon develop into a strong third option in legal research.
According to the President of the Brady Campaign to Prevent Gun Violence:
We've lost the battle on what the Second Amendment means. Seventy-five percent of the public thinks it's an individual right. Why are we arguing a theory anymore? We are concerned about what we can do practically.
Full story from ABC News here. Hat tip: Eugene Volokh at The Volokh Conspiracy.
He passed away today at the age of 58.
Update: Initial age figure based on an error in an early news report. Corrected.
Update 2: Should have noted that Russert was trained as a lawyer before becoming a journalist. That explains a lot about his terrific interviewing style.
So the long-awaited case on the rights of enemy combatants held at Guantanamo Bay came down this morning, and it’s a doozy (in a number of different senses). The overall vote was 5-4, with Justice Kennedy providing the swing vote for the prevailing Breyer-Ginsburg-Souter-Stevens block. The syllabus alone is eight pages long, and together the main opinion by Justice Kennedy, the concurring opinion by Justice Souter, the dissent by Chief Justice Roberts, and the dissent by Justice Scalia take up 134 pages. I confess that I’ve only had time to read the syllabus today (which in turn only covers the main opinion) and there’s a whole lot of substance even there. For now, let me address, very, very briefly and at a very general level, what seem like the two most important points to come from the case.
1. The determination of whether a particular set of detainees is covered by the Constitution’s Suspension Clause, which guarantees that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it,” is not made solely based on where the detainees were captured or are being held. The Bush Administration had pushed for application of such a territoriality-based standard, but instead the Court decided that its precedents required adoption of a "functional approach." The majority announced a three-factor test for determining whether the Suspension Clause applies to a group of detainees U.S.: courts must consider "(1) the detainees’ citizenship and status and the adequacy of the process through which that status was determined; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ." Applying that test, the majority concluded that detainees held as enemy combatants at Guantanamo are covered by the Suspension Clause.
2. The Court also determined that Congress has invalidly suspended access to writ as to the detainees because the the substitute legal process that Congress provided for the detainees -- an extremely government-friendly Combatant Status Review Tribunal and very circumscribed review of the CSRT determination in the D.C. Circuit Court of Appeals-- is no real substitute at all. The majority concluded that
Petitioners have met their burden of establishing that the [review process] is, on its face, an inadequate substitute for habeas. Among the constitutional infirmities from which the [process] potentially suffers are the absence of provisions allowing petitioners to challenge the President’s authority ... to detain them indefinitely, to contest the CSRT’s findings of fact, to supplement the record on review with exculpatory evidence discovered after the CSRT proceedings, and to request release.
(All quotes are from the syllabus provided by the Clerk of the Court.)
I wish I had the time today to read all the opinions and begin to offer some more detailed discussion and analysis, but I'll get around to in the next few days. In the meantime, there's lots of decent coverage of the decision out there, and if you have 15 or 20 minutes to spare you can read the syllabus (or, indeed, if you have the time and the inclination the actual opinions) here.
