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Scrivener's Error| null | |
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Scrivener's Error |
Law and reality in publishing (seldom the same thing) from the author's side of the slush pile, with occasional forays into military affairs, censorship and the First Amendment, legal theory, and anything else that strikes me as interesting. |
link to: 11:58 [GMT-6]
Before diving into the link sausages, congratulations to the Nebula Award winners and nominees, including my clients, friends, and acquaintances...
My interest today, though, is not with the majority opinion, but with the shoddy legal analysis and nigh-incomprehensible historical ignorance appearing in dissent. Justice Scalia penned the first dissent, joined by Justice Thomas; in it, he claims that
Today the Court affirms what is perhaps the most radical injunction issued by a court in our Nation’s history: an order requiring California to release the staggering number of 46,000 convicted criminals.
(slip op. at 59), which neglects the earlier Brown matter entirely involving millions of melaninically enhanced schoolchildren... whose legal status had been legislatively established, not judicially. It neglects the obvious impact of injunctive relief implied and actually imposed for "staggering numbers" of "convicted criminals" in Miranda, in Gideon, in Mapp, and in Katz (to name just a few favorites). Further, virtually none of the authority that he cites in support of his longterm disdain for "structural injunctions" either (a) acknowledges their use by the Supreme Court in other civil rights matters in the face of legislative and executive disregard, or (b) constitutes a majority opinion (the judicial opinions are almost all concurrences, and the less said about the other sources the less character however-justified assassination I'll be engaging in online). The second dissent is, if anything, worse. Justice Alito, joined by Chief Justice Roberts, asserts that Congress, through its legislative authority, could prevent courts from providing a remedy for constitutional violations. Again, the dissent completely neglects the past, and even past opinions by Justice Alito himself; the more-than-faint sound of whinging from that opinion is more than troubling from the highest court in the land.
The obvious link between the two dissents is their treatment of the 46,000 as all equally undeserving of relief, and thereby making two bad assumptions. The first, and most obvious, is that every prisoner to be released is both substantively and procedurally guilty. Hmm. Didn't the Court — with those four dissenters here in Plata in the respective majorities at least once — recently hold that a couple of federal white-collar prisoners had been improperly convicted, indicating that not all prisoners have exhausted all of their potential remedies? Second, the dissents implicitly deny that a legislative or executive policy decision can have unconstitutional consequences that — as the last resort — the courts must rememdy, however distasteful they find that remedy. In essence, sometimes governing requires a branch of government to step in to another branch's area of competence when that other branch refuses to fulfill its responsibilities. Separation of powers, however strict, is not separation of responsibility to the Constitution as a whole.
Well, that's enough pontificating for now. Maybe later, maybe tomorrow, I'll have some comments on UK privacy legislation and "superinjunctions," Google, e-book piracy, and so on.
Labels: arts, civil rights, culture, jurisprudence, military, politics
Ritual disclaimer: This blog contains legal commentary, but it is only general commentary. It does not constitute legal advice for your situation. It does not create an attorney-client relationship or any other expectation of confidentiality, nor is it an offer of representation.
All material © 2003–12 except where otherwise indicated. All rights reserved. This blawg does not use the Creative Commons License, although I'm usually pretty good-natured about permissions for attributed reuse.
I approve of no advertising appearing on or through syndication for anything other than the syndication itself; any such advertising violates the limited reuse license implied by voluntarily including syndication code on this blawg, and I do not approve aggregators and syndicators whose page design reflects only an intent to use the reference(s) to this blawg without actually providing the content from this blawg.
Sausages?
Internet link sausages, as frequently appear here, are gathered from uninspected meaty internet products and byproducts via processes you really, really don't want to observe; spiced with my own secret, snarky, sarcastic blend; quite possibly extended with sawdust or other indigestibles; and stuffed into your monitor (instead of either real or artificial casings). They're sort of like "link salad" or "pot pourri" or "miscellaneous musings" (or, for that matter, "making law"), but far more disturbing.
I am not responsible for any changes to your lipid counts or blood pressure from consuming these sausages... nor for your monitor if you insist on covering them with mash or sauce.
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