GOP Senators <3 judicial activism — when it suits their reactionary agenda

A foolish consistency may be the hobgoblin of little minds, but the problem doesn’t seem to afflict mindless little hobgoblins like Senators Cornyn, Coburn, and Sessions.

Meanwhile, in a twist on their argument that Ms. Kagan might be a “judicial activist” who would legislate from the bench, some Republicans expressed concern on Wednesday that she might be too hesitant to strike down acts of Congress that arguably exceed the federal government’s constitutional authority.“

I am concerned that she views the power of the federal government to be essentially without limit,” said Senator John Cornyn, Republican of Texas. “She said yesterday that the courts would defer to Congress, and Congress knows no limit to its power grabs, as we’ve seen.”

A nice parting shot from Mr. Justice Stevens

On the merits, I generally agree with the majority’s conclusion in McDonald v. Chicago that the Second Amendment applies to the states and not just the federal government; I also agree with the holding in Heller that the Second Amendment protects the right of individuals to possess and use guns. On the more specific question of what that means for state and local gun control laws, my own view (at least vaguely similar to that expressed by libertarian legal scholar Randy Barnett) is that a rough analogy to the First Amendment concept of “time, place & manner restrictions” should apply, permitting regulations that reasonably advance the compelling government interest in public safety. Under that test, a sweeping ban on handgun possession seems clearly overbroad; narrower regulations — such as requiring safety locks or cabinets, gun safety training, or similar measures — should be permissible.

Notwithstanding my view on the outcome of the case, I am delighted by the dissenting opinion of retiring Justice John Paul Stevens — specifically, Part VI of that opinion, in which Stevens lays out a sharp and devastating critique of Justice Scalia’s shoddy analytical approach. What Stevens says of Scalia’s concurring opinion in McDonald applies as well to the entire Scalia œuvre: the analysis “does not have nearly as much force as the rhetoric”.

Although JUSTICE SCALIA aspires to an “objective,” “neutral” method of substantive due process analysis, his actual method is nothing of the sort. Under the “historically focused” approach he advocates, numerous threshold questions arise before one ever gets to the history. At what level of generality should one frame the liberty interest in question? What does it mean for a right to be “‘deeply rooted in this Nation’s history and tradition,’”? By what standard will that proposition be tested? Which types of sources will count, and how will those sources be weighed and aggre­ gated? There is no objective, neutral answer to these questions. There is not even a theory—at least, JUSTICE SCALIA provides none—of how to go about answering them.

***

My point is not to criticize judges’ use of history in general or to suggest that it always generates indetermi­nate answers; I have already emphasized that historical study can discipline as well as enrich substantive due process analysis. My point is simply that JUSTICE SCALIA’s defense of his method, which holds out objectivity and restraint as its cardinal—and, it seems, only—virtues, is unsatisfying on its own terms. For a limitless number of subjective judgments may be smuggled into his historical analysis. Worse, they may be buried in the analysis.

Stevens is absolutely correct that Scalia’s approach “invites not only bad history, but also bad constitutional law.” The fact that Scalia managed to reach what I consider to be the correct outcome in this case doesn’t alter that assessment. It’s nice to see Justice Stevens departing, not with a whimper, but with a bang.

The sun is beating me senseless, I feel defenseless like a little lamb

The combination of endless swelter and unstructured days has me wallowing in the Slough of Despond. (Though, in the actual Slough of Despond, today’s weather forecast calls for a high of only 70 degrees. Oh to be in Canada, now that summer’s here!) I am mired in nostalgic melancholia. If I had a copy of Proust handy, I’d spend the day lounging on the sofa, reading Swann’s Way and eating madeleines. As it is, I’ll have to settle for watching World Cup soccer and nibbling on 3-day old pumpernickel (which, truth be told, I prefer to madeleines anyway).

Unlicensed fishing costs $1.2 million

Here’s a story for my “law & fishing” file. Bonus points because it happened in North Carolina.

The crew of the Citation thought they were sitting pretty, having pulled in the biggest fish in the annual Big Rock Blue Marlin Tournament in Morehead City, N.C., an 883-pounder. This would have netted (pun intended) them over $1.2 million, because the fish was the first over 500 lbs. and because, as it turned out, no bigger fish was caught through the end of the tournament.

But, yesterday, the Citation was disqualified. Because one of the mates on the boat was not in possession of a valid North Carolina fishing license. A license that would have cost him $30. According to the story in the Virginian-Pilot, the mate, Peter Wann, had lied to the Captain of the boat, saying he had a license. Once the record fish was caught, and he realized it might be an issue, Wann purchased a license (presumably online?) on the way to the weigh station.

Retired psychotic kindergarten teacher speaks out

The phrase “Canadian legal academia” wouldn’t ordinarily conjure up an image of heated controversy. But, as Inside Higher Education reports, our neighbors to the north “have been buzzing in the last week about a harsh critique of the country’s law schools, which are compared to ‘psychotic kindergartens’ in a journal article published by Robert Martin, a retired law professor at the University of Western Ontario.”

Professor Martin certainly does not pussyfoot around his subject. The opening paragraphs of his article set the tone for the entire piece:

Right at the top of my ever-lengthening list of “things about Canada which I cannot understand” is the fact that, every year, we spend billions of dollars on institutions which we are pleased to call universities.

People arrive at university after completing lengthy processes, which we call education, of idiotisation and moronification. They have also spent years immersed in a barbarous popular culture which is, in my view, vulgar, coarse, and infantile. The universities, thus, face a severe challenge, one which they largely fail to meet.

Each fall a horde of illiterate, ignorant cretins enters Canada’s universities. A few years later, they all move on, just as illiterate, just as ignorant, and rather more cretinous, but now armed with bits of paper, which most of them are probably not able to read, called degrees.

Martin blames this woeful state of affairs on a combination of consumerism and feminism. Cutting through the bile, Martin’s criticism of “The Corporate University” and “The Commodification of Legal Education” has a good deal of merit. His jeremiad against feminist “Repression”, on the other hand, is simply the same old warmed-over “political correctness” spiel that is now well past its sell-by date.

Martin concludes with a modest proposal:

Current levels of homelessness are a disgrace in a country as wealthy as Canada. I have a two-step plan for freeing Canada at once of two major social ills. This is the plan.

Step One: Close every law faculty in Canada; and

Step Two: Hand the premises of the former law faculties over to homeless people.

The books in the law libraries would serve a much more socially useful function as cooking fuel than they do being gawped at by illiterate students.

North Carolina’s Little River Among America’s Most Endangered

The Little River, in Wake County, NC, ranks No. 4 on American Rivers’ 2010 list of the nation’s most endangered rivers:

The Little River, home to an abundance of fish and wildlife, provides drinking water, irrigation, and recreational opportunities to the surrounding communities. A proposed water supply dam would not only cost taxpayers millions, it would severely harm the river’s health. American Rivers proposes better, more reliable, and cost-effective solutions to meet the area’s water supply needs, including comprehensive water efficiency measures, and expanding existing water supply reservoirs. Raleigh and Wake County should pursue these smarter and cheaper alternatives, and protect the valuable resources of the Little River.

I’ve never fished the Little River. Looks like I’d better do it soon.

Scenes from the post-racial society: Courthouse edition

The New York Times reports on the continuing practice of excluding African-Americans from juries in Southern states. The article is based on a study by the Equal Justice Initiative:

During two years of research in eight southern states (Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina, and Tennessee), EJI interviewed over 100 African-American citizens who were excluded from jury service based on race and reviewed hundreds of court documents and records. EJI uncovered shocking, present-day evidence of racial discrimination in jury selection, including:

• Racially biased use of peremptory strikes and illegal racial discrimination in jury selection remains widespread, particularly in serious criminal cases and capital cases. Hundreds of people of color called for jury service have been illegally excluded from juries after prosecutors asserted pretextual reasons to justify their removal.

• Prosecutors have struck African Americans from jury service because they appeared to have “low intelligence,” wore eyeglasses, walked in a certain way, dyed their hair, and countless other reasons that the courts have rubber-stamped as “race-neutral.”

• Some district attorney’s offices explicitly train prosecutors to exclude racial minorities from jury service and teach them how to mask racial bias to avoid a finding that anti-discrimination laws have been violated.

• In some communities, the exclusion of African Americans from juries is extreme. For example, in Houston County, Alabama, 8 out of 10 African Americans qualified for jury service have been struck by prosecutors from death penalty cases. In Jefferson Parish, Louisiana, there is no effective African American representation on the jury in 80 percent of criminal trials.

• Many defense lawyers fail to adequately challenge racially discriminatory jury selection because they are uncomfortable, unwilling, unprepared, or not trained to assert claims of racial bias.

• There is wide variation among states and counties concerning enforcement of anti-discrimination laws that protect racial minorities from illegal exclusion.

Fool for a client

This may be the very best story about a crazy pro se litigant ever:

West Virginia Record
Woman files another suit against Oprah

CHARLESTON — A Charleston woman is suing Oprah Winfrey again, this time claiming the talk show host took funds from her Social Security account and deposited them into the U.S. Treasury.

Famous television evangelist T.D. Jakes and his wife Serita also are named as defendants in the suit.

The defendants allegedly took funds from Emily K. Braxton’s Social Security funds and deposited them into the U.S. Treasury for nuclear warfare, according to a complaint filed May 19 in Kanawha Circuit Court.

Braxton claims the defendants also have sought to cut communications between her and her daughter and grandchildren.

Braxton claims in her complaint that she also believes Winfrey, the Jakes, Pope Benedict XVI and President Barack Obama had musician Michael Jackson killed.

Braxton is seeking for her wages to be restored. She is representing herself.

The case has been assigned to Circuit Judge James C. Stucky.

Braxton recently filed a lawsuit against Winfrey, former President George W. Bush and Laura Bush. She claimed they conspired with local physicians to implant a camera with wire sensors into her with the intent of reincarnation.

She also has filed at least 12 similar lawsuits in Kanawha Circuit Court since 2001, according to court records. All have been dismissed.

Kanawha Circuit Court case number: 10-C-909

I will certainly have to use this in my Civil Procedure class next year, to illustrate FRCP Rule 12(b)(6).

Češi do toho!

This almost makes up for the Winter Olympics disappointment.

Beach Petroleum

This is several hundred miles past outrageous into uncharted territory of mind-blowingly fucked-up.

Photo by John Hazlett and Mac McClelland for Mother Jones Magazine

The appropriate response would be to seize all of BP’s US assets, ship their entire Board of Directors off to Guantanamo, and send in the Army Corps of Engineers to clean this shit up