28 June 2010

Mob Rule Link Sausages

Before going face-first onto the sausage platter, this last scheduled day of the October 2009 Term, two deaths to note: Martin Ginsburg, husband of Supreme Court Justice Ruth Bader Ginsburg; and Senator Robert Byrd (D-WV), one of the primary reasons that the Senate should have a mandatory retirement age (due to his abuse of the system, regardless of my occasional agreement with his ideology).

  • Today's final opinion day had, as expected, some fireworks... and some fizzles. Despite the death of her husband yesterday, Justice Ginsburg is on the bench. In the order announced (which depends in part on the seniority of who wrote the controlling opinion):

    • McDonald v. City of Chicago, No. 08–1521: Gun rights under the Second Amendment are incorporated against the states (and, in this instance, subelements of states) through the Fourteenth Amendment; that is, states cannot ban handgun ownership. This was expected. The 5–4 decision, though, does not appear to have a very clear, true-majority rationale for exactly how the right applies to the states; four justices held it was through the Due Process clause (as I expected), but the fifth justice voting to reverse (Thomas) did so under the Privileges or Immunities Clause, although the four-justice grouping in the majority explicitly refused to reconsider The Slaughterhouse Cases (which otherwise make the Privileges or Immunities Clause almost meaningless — apparently not so meaningless as to deter Justice Thomas, though).

      As a matter of principle, I think the Court's dismissal of the militia clause two years ago in Heller leads almost inevitably to this result... and is wrong procedurally, historically, linguistically, and in substance. That said, this was a predictable result, despite the furor. It took the Court over 200 pages (!), including the dissents, to reach this result, which demonstrates all too well the principle weakness of stare decisis when it becomes stagnant and depends upon wrenching principles from their contexts. I think Justice Stevens implicitly points out this difficulty at the beginning of his dissent:

      In District of Columbia v. Heller, 554 U. S. ___, ___ (2008) (slip op., at 1), the Court answered the question whether a federal enclave’s “prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution.” The question we should be answering in this case is whether the Constitution “guarantees individuals a fundamental right,” enforceable against the States, “to possess a functional, personal firearm, including a handgun, within the home.” Complaint ¶34, App. 23. That is a different — and more difficult — inquiry than asking if the Fourteenth Amendment “incorporates” the Second Amendment. The so-called incorporation question was squarely and, in my view, correctly resolved in the late 19th century.

      And so it goes.

    • Christian Legal Society v. Martinez, No. 08–1371: A policy that student groups must allow all who wish to join to do so, and attain leadership positions — without, as the CLS would have required, include an affirmation of a specific point of view — satisfies the Constitution. This case is being sent back for further proceedings because there might have been a properly presented claim of a selective enforcement problem, but this is a resounding defeat for those who claim that religious viewpoint is "special" in the sense of allowing religious organizations to discriminate when others may not. Now if we can just get the statutory exemption for religious discrimination by religious organizations removed from federal employment discrimination law...
    • Bilski v. Kappos, No. 08–964: The Court affirmed, but on different grounds, holding that the particular business method patent in this instance was not eligible for patent protection. That's the right result; I'll be examining the reasoning in detail later, because it has significant implications for both freedom of speech and for the scope of copyright protection. The critical problem is that this is a highly fractured opinion: Although all nine justices voted to affirm (that is, reject the particular patent as ineligible), there is no majority opinion for the reasoning, and reconciling/deconflicting/figuring out what the hell is going on is going to take a little bit more time than I've got at the moment.
    • Free Enterprise Fund v. Public Company Accounting Oversight Board, No. 08–861: In an expected 5–4 opinion, the particular membership structure of this board was rejected as a violation of separation of powers. This was predictable after several opinions concerning DC and DC-area governance in the last 25 years... but the key is how far the Court is willing to go in rejecting this part of SarbOx. As the Perfesser accurately notes, one of the many flaws in SarbOx as a piece of legislation (leaving aside whether one agrees with its substance) is that it does not contain a severability clause. In this instance, it appears that the Court went out of its way to avoid rejecting the entire piece of legislation, holding only that the Board's members had not been properly appointed (and, therefore, that their particular functions and rulings were invalid). Instead, the Court itself fashioned a severence... which isn't completely unprecedented, but is highly unusual.
    • And last for this entry, but far from least (not to mention first issued!), the orders list included, among other things, denying the petitions for certiorari in all seven tobacco-company petitions (more on that in a couple of days, as it's procedurally and substantively complex). I might discuss a few of the other grant/nongrant determinations, including the civil-procedure-geek interest of the grant in Henderson, later in the day (or even in the week).

    And so mob rule is safe until Monday, 04 October 2010, unless the Court does something odd based on its conference later today (the results of which will be announced tomorrow). I sort of doubt that, with an impending vacancy and no opportunity for the new justice (presumably General Kagan, but not guaranteed) to participate in deciding whether to decide.

  • Lee Goldberg talks about the ultimate horror novel: It Came From the Slush Pile. I put the blame for this on Mrs Grundyism — because the American education system (too often, even at the university level) doesn't do enough to teach people about the difference between good and bad writing, focused as it is on measurable metrics (like the ability to spot Mrs Grundy's favorite grammatical "errors" that, all too often, are not errors at all) instead of teaching the joy available in literature; how one achieves that joy; and all of those other things that nerdy English majors love so much.
  • Yet another take on book covers, this time from a small-press publisher. I think she's a bit overhopeful in one aspect, though, with her claim that "book covers should reflect the contents." I think it enough that the cover avoids misrepresenting the contents... because there's just no way for a cover to "represent the contents" of a multithreaded work, or a theme-driven work, or...
  • Professor Kleiman effectively refutes the "stupid gap" theory of why class boundaries persist in the US without the formal nonsense of a caste system or the historical imperatives in Europe. Of course, that's an understatement... how about the next rung up from poor, frequently consisting of people in true service like nurses, military personnel, etc. — that is, those occupations most likely to be the subject of free-riding and negative externalities?
  • The FTC has criticized Twitter's privacy (and, implicitly, data security) practices. Nobody who has ever used it should be surprised: The TOS don't quite say "we make no guarantees — you're on your own!"
  • Criticism of diacriticals at The Economist, which continues with its arrogant claim that "two-thirds of the world is covered by water, and the rest is covered by The Economist" (leaving aside whether The Economist covers literature or science worth a damn, the factual inaccuracy of calling 71% "two-thirds" sort of undermines things a bit). That said, it's an interesting issue... and less inappropriate than musing on how to vomit via Spanish grammar.