June 28, 2004
First, let me extend a most heartfelt thanks to Will for allowing me to guest-blog here at Crescat for a week. It's a real treat to be back in the blawg-saddle again (for anyone truly interested, a quirk of Blogger permits access to the archives of the "old" All Deliberate Speed). Anyone who wishes to contact me may do so via "alldeliberatespeedblog," at the opposite of "Coldmail."
Second, an introduction is in order. I'm a federal law clerk, so I'll remain quasi-anonymous. Regardless of that anonymity, my time spent here will comply with the Code of Conduct for Judicial Employees. One of the consequences of this is that, although it's (possibly) an extremely important issue, I will not comment on the applicability of Blakely to the Federal Sentencing Guidelines, as that is an issue likely to come before every district and appellate court in the federal judiciary in the near future. My occupation also means that my posting will be limited to the evening and very early morning.
Finally, I note the irony of joining (even temporarily) a blog maintained by (former) UC students. I'm not sure if I ever mentioned it at ADS, but I attended UC for three years, before being forced to leave by a combination of my own, lackluster academic performance and a draconian financial aid possibility (before the guessing as to specifics starts: no, I wasn't denied financial aid for academic reasons, but an exception to the policy might have been found in the equitable wisdom of the Administration had I been a better student).
I was a sociology major in the waning glory days of that department. William Julius Wilson departed for greener pastures while I was a student there, and Marta Tienda left shortly after I was gone. I was never privileged enough to take a course with the former, but I credit a Race Relations course taught by the latter as playing a significant role in my decision to focus my law practice (which begins in about two months) on the representation of plaintiffs in civil rights suits.
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For continuing coverage on today's Supreme Court rulings in Hamdi, Padilla, & Rasul, visit Legal Theory Blog where Professor Solum has been rounding up news reports and commentary from around the blogosphere.
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I have heard a theory many times in the past few weeks that Justice Thomas is just a lackey to Justice Scalia, and never expresses opinions or thoughts of his own. (A roommate of mine uncharitably uses the word "puppy-dog".)
Of course, Eugene Volokh complained about this theory a while back, and today's opinions from Scalia and Thomas in Hamdi could barely be farther apart in their results. This sort of evidence rarely seems to impress the people I've met who hold this curious theory (perhaps I am being too generous in calling it a "theory" rather than an ill-considered opinion, but I will err in that direction for this post).
Usually, when a clearly-wrong belief persists like this one does, there is some sort of memetic explanation-- some reason that the belief is convenient, or that people who do not share it are unlikely to prosper, or some reason that the wrong belief has a particular advantage in replicating itself. But I can't think of any such explanation here.
I am especially amazed by this theory's ability to persist in the face of evidence of clear distinctions between the two, whether in Ewing or Locke v. Davey or Virginia v. Black, where the differences were distinct but relatively minor, or in Hamdi or Bajakajian where the two were as far apart as can be. Proponents of this theory are never clear about how many data-points it would take to shut them up, nor about why similarity between the two justices is taken as proof that Thomas is subordinate to Scalia, rather than the other way around.
Anyway, it is a remarkably persistent meme, and therefore impressive in much the same way that a cold virus is. But I do not understand its powerful ability to replicate itself.
UPDATE: More, on a similar topic, from Eugene Volokh.
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One of the important and interesting questions in the detention cases was whether Congress had authorized the type of indefinite detention at issue. With a bit of vote counting in Hamdi, the answer is yes--but by the very close margin of 5-4. Suggesting that Congress had authorized the type of detention at issue were the members of the plurality (O'Connor, Rehnquist, Kennedy, and Breyer) and Justice Thomas in dissent. The opinions of Justice Souter (joined by Ginsburg) and Scalia (joined by Stevens) provided four votes in opposition to the view that Congress had authorized the detention at issue.
On this point, the government had argued that congressional authorization for the type of detention at issue was not required. Rather, the government maintained that the Executive has plenary authority to detain pursuant to its Article II powers. The plurality did not address this argument. Instead, it adopted the government's alternative argument: that Congress did authorize the type of detention at issue through its Authorization for Use of Military Force (AUMF).
The AUMF authorizes the President to
"use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
Also at issue was 18 U.S.C. Section 4001(a) (the Non-Detention Act), which disallows imprisonment or detention of a citizen "except pursuant to an Act of Congress." The plurality thought Section 4001(a) satisfied by the AUMF. This determination provided the point of dissent in Souter's opinion, which was joined by Ginsburg:
"The Government has failed to demonstrate that the Force Resolution authorizes the detention complained of here even on the facts the Government claims. If the Government raises nothing further than the record now shows, the Non-Detention Act entitles Hamdi to be released." Slip. Op. at 3 (Souter, J. concurring in part, dissenting in part, and concurring in the judgment).
Moving on to Scalia-Stevens, we see that in their view "Hamdi is entitled to a habeas decree requiring his release unless (1) criminal proceedings are promptly brought, or (2) Congress has suspended the writ of habeas corpus." And on the specific question of whether Congress had authorized the detention at issue Scalia writes that the AUMF
"is not remotely a congressional suspension of the writ, and no one claims that it is. Contrary to the plurality’s view, I do not think this statute even authorizes detention of a citizen with the clarity necessary to satisfy the interpretive canon that statutes should be construed so as to avoid grave constitutional concerns, see Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U. S. 568, 575 (1988); with the clarity necessary to comport with cases such as Ex parte Endo, 323 U. S. 283, 300 (1944), and Duncan v. Kahanamoku, 327 U. S. 304, 314–316, 324 (1946); or with the clarity necessary to overcome the statutory prescription that '[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress.'" Slip Op. at 22 (Scalia, J. dissenting).
As Scalia goes on to explain, this is not the crucial point of his opinion. Nonetheless, it is two more votes (at this point making it 4-4) on whether Congress had authorized the detention at issue.
Justice Thomas provides the decisive fifth vote on this interesting question when he writes:
"Although the President very well may have inherent authority to detain those arrayed against our troops, I agree with the plurality that we need not decide that question because Congress has authorized [through the AUMF] the President to do so." Slip Op. at 9 (Thomas, J. dissenting).
I think this question and the resulting Court line-up is most interesting. How might the outcome have been different had the vote on this gone the other way? Of course, no one knows for sure. And being somewhat averse to counterfactuals, I won't speculate. But it appears the vote of interest here is Breyer’s. There is much of interest in these opinions and I’m sure commentary will be coming in throughout the day. This was just one point of interest--one that found its interesting resolution somewhat scattered throughout the opinions.
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Being somewhat environmentally conscious, I lamented the lack of easy recycling almost everywhere I lived and felt guilty tossing away milk jugs and cereal boxes. However, I never felt guilty enough to actually seek out a recycling center.
My new home of Upper Arlington, Ohio not only has made recycling easy for me, it has given me an economic incentive to recycle and reduce my non-recyclable waste. In what I consider a really clever program, curbside recycling is free and other trash is taken away at the exhorbitant price of $2.50 per bag. A lot of stuff is deemed recyclable, too and only requires separation into two types of bins.
Yard waste is taken away on a separate day and composted and also requires the $2.50 sticker unless you take it to the composting center yourself. Leaves are also composted and leaf collection in autumn is free, requiring only that you rake or blow your leaves toward the edge of the street.
This seems like such an excellent waste management strategy, that I wonder why I've never seen it before. Does it exist in a lot of places? Is it expensive to implement? If anyone has answers, please let me know.
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When Justice Scalia dissents and is joined only by Justice Stevens, what kind of opinion could it be? In this case, a dissent in Hamdi v. Rumsfeld, where the two of them would hold that Hamdi's detention is completely impermissible, contra the more balanced opinion from O'Connor, Rehnquist, Kennedy, and Breyer (who Walter Dellinger calls the "Pragmatists") and contra the no-review-by-this-Court opinion of Thomas.
As an opinion bringing those two poles together might be expected to be (I don't know if there has been another opinion signed only by those two), it is laden with an investigation of Blackstone and strong language in defense of Hamdi's right to due process. Choice bits:
It should not be thought, however, that the plurality’s evisceration of the Suspension Clause augments, principally, the power of Congress. As usual, the major effect of its constitutional improvisation is to increase the power of the Court. Having found a congressional authorization for detention of citizens where none clearly exists; and having discarded the categorical procedural protection of the Suspension Clause; the plurality then proceeds, under the guise of the Due Process Clause, to prescribe what procedural protections it thinks appropriate. It “weigh[s] the private interest . . . against the Government’s asserted interest,” ante, at 22 (internal quotation marks omitted), and—just as though writing a new Constitution—comes up with an unheard-of system in which the citizen rather than the Government bears the burden of proof, testimony is by hearsay rather than live witnesses, and the presiding officer may well be a “neutral” military officer rather than judge and jury. It claims authority to engage in this sort of “judicious balancing” from Mathews v. Eldridge, a case involving . . . the withdrawal of disability benefits! Whatever the merits of this technique when newly recognized property rights are at issue (and even there they are questionable), it has no place where the Constitution and the common law already supply an answer. ...
There is a certain harmony of approach in the plurality’s making up for Congress’s failure to invoke the Suspension Clause and its making up for the Executive’s failure to apply what it says are needed procedures—an approach that reflects what might be called a Mr. Fix-it Mentality. The plurality seems to view it as its mission to Make Everything Come Out Right, rather than merely to decree the consequences, as far as individual rights are concerned, of the other two branches’ actions and omissions. Has the Legislature failed to suspend the writ in the current dire emergency? Well, we will remedy that failure by prescribing the reasonable conditions that a suspension should have included. And has the Executive failed to live up to those reasonable conditions? Well, we will ourselves make that failure good, so that this dangerous fellow (if he is dangerous) need not be set free. The problem with this approach is not only that it steps out of the courts’ modest and limited role in a democratic society; but that by repeatedly doing what it thinks the political branches ought to do it encourages their lassitude and saps the vitality of government by the people. ...
Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis—that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate
it. Because the Court has proceeded to meet the current emergency in a manner the Constitution does not envision, I respectfully dissent.
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Once upon a time "Donald" ran the blog, All Deliberate Speed, though he abandoned it last summer when his clerkship can rolling around. His original blogspot location has now been taken over by Professor Charles Ogletree to promote his book, though you can still see some evidence of the old blog in these Crescat posts here and here (though obviously the old links to Donald's blog are now long gone).
Anyway for the next week, Donald will be visiting us here at Crescat; I'll let him make further introductions himself.
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The detention cases are out, and with some partial victories for the detainees.
On which, Tom Stoppard:
Bakunin: Freedom is a state of mind.
Herzen: No, it's a state of not being locked up.
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Via Unlearned Hand, among others, I see that Solicitor General Ted Olson is giving up his post. On one hand, that's unfortunate since he seemed (to my untutored eye) to have been a particularly adept and principled SG. On the other hand, the Solicitor General's job includes defending the constitutionality of a lot of legislation; Olson, for example, successfully defended the execrable BCRA. So maybe it would be better for the country to have somebody less competent in the post . . .
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