27 April 2005


I'll be in the Windy City from this evening for several days, teaching a CLE session on publishing law, and generally doing other workish sorts of things. Blawgging will thus be sporadic until Monday.

Yesterday's Supreme Court opinions were… interesting. Both involved the interplay between US criminal law and foreign law. Small v. US, No. 03–750 (Breyer, J.), held that only US felony convictions act to prevent firearms possession. The petitioner had been convicted of firearms smuggling in Japan. Justice Breyer, for a 5–3 majority, held that 18 U.S.C. § 922(g)'s reference to "convicted in any court" must mean domestic courts. Although he takes a difficult path to the result, it's the right one. If Congress means "anywhere at any time," it can say so; and, if it does, it runs the risk of making felons out of people who, for example, spoke out against a repressive regime. But "law and order" didn't have it all bad yesterday! In Pasquantino v. US, No. 03–725 (Thomas, J.), the Court held that a US-based scheme to defraud a foreign government of tax revenue—in this instance, Canadian duties on alcohol—can be prosecuted in the US under the US wire fraud statute (18 U.S.C. § 1343). This is a much more straightforward circumstance, despite the argument for "extraterritorial effect of US law" that fails on these facts. As pointed out in the opinion, all of the activities necessary for the "conspiracy" occurred in the US, and those same activities would otherwise have been prohibited under US law even between states (although that subject remains on the decision calendar for this term…). Pasquantino is most interesting for the voting lineup:

Thomas, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O'Connor, and Kennedy, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Breyer, J., joined, and in which Scalia and Souter, JJ., joined as to Parts II and III.

What is perhaps most fascinating is that Justice Scalia was content to let someone else write a dissent that essentially complains that the Court is relying on foreign law. Although the main opinion could have been much clearer on this, I think the case means a lot less than the dissent would have it mean. The conduct in question would have been illegal inside the US. Had this instead been, say, an excise tax on foreign-printed news magazines, it would have been a closer question. But it wasn't; and on these facts, this is probably the right result. (Presuming, that is, that the statement of facts in the opinion, and in the briefs, is in fact accurate—something that may be a bit of a stretch, but is probably not excessively so.)

That leaves us with approximately 35 opinions (by my count, and I may be missing something) that should issue before the end of June. At which point, I suspect that the last order for the Term will read something like this:


The Court will take a recess from today until Monday, October 3, 2005.


The CHIEF JUSTICE resigns from active service on this Court, effective September 14, 2005.

There's just too much going on at the moment that seems to me to require a clear "chain of command" at the Court. I also think that the far right will be rather distraught at the thought of Justice Stevens as Acting Chief Justice during a long confirmation battle. But then, that's just me.