Good Question

This one’s a doozy. Via VC but originally posed by Howard Bashman.

October 2018 – How AppealingAssume that the [Supreme] Court issues a decision holding that the U.S. Constitution prevents a State from criminalizing certain specified conduct (e.g., early term abortion or consensual sodomy). Later, assume that the Court reverses course and holds that the U.S. Constitution does not prevent a State from criminalizing that same specified conduct.

Is the effect of the first ruling to wipe from the books in all States, or in any States, the laws criminalizing the specified conduct? Would the second ruling allow States to begin enforcing the laws that were in existence when first ruling issued that the first ruling had declared or implied were unconstitutional? Or would the second ruling require States that wished to criminalize the specified conduct to pass new laws doing so, even if those States had identical laws on the books when the Court’s first ruling issued?

I haven’t the slightest…but if you do head over here to comment.

UPDATE: Stuart Buck points us to this law review article which adresses the question.

One thing to clear up right off the bat, however, is the common misconception that federal courts have the power to “strike” down a law. We usually imagine that a statute, once declared unconstitutional, “is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as thought it had never been passed.”191 But this is not technically accurate. Despite such language used by courts and commentators, there is no such thing as “striking down.” A federal court has no power to erase a statute from a state’s lawbooks.192 As one prominent scholar said, “No matter what language is used in a judicial opinion, a federal court cannot repeal a duly enacted statute of any legislative authority.”


Martin S. Lederman



UPDATE II: This makes sense. Marty Lederman states, “A Court declaration of unconstitutionality…”merely” serves as a de facto injunction against application of the statute.”

Superhighway to Serfdom

Dahlia Lithwick speaks into a microphone when testifying to the House Judiciary Committee.Dahlia Lithwick of Slate filed this report on the Kelo v. City of New London oral arguments. Unfotunately Lithwick’s predictions mirror those of Marty Lederman.

Justice Ruth Bader Ginsburg points out that the city is depressed; what’s wrong with efforts to “build it up and get more jobs?” Bullock says the condemned land in Berman was “blighted,” but this land is merely depressed. O’Connor, never one to tip her hand too early at argument, asks Bullock “What standard should we use to second-guess the legislature?” Bullock insists that once condemned land is passed off to private developers, it’s no longer going to “public use.” Justice Anthony Kennedy interrupts to observe that “everybody knew private developers were the beneficiaries” when slums were condemned in Berman.

And then there’s this.

Justice Antonin Scalia asks what difference it makes that New London is depressed. What if a city acknowledged that it wasn’t doing badly, but just wanted to condemn land to attract new industry? He describes Horton’s position as: “You can always take from A and give to B, so long as B is richer.” And O’Connor offers this concrete example: What if there’s a Motel 6 but the city thinks a Ritz-Carlton will generate more taxes? Is that OK?

Yes, says Horton.

“So you can always take from A and give to B if B pays more taxes?” asks Scalia.

“If they are significantly more taxes,” says Horton.

I’m speechless. Read the whole thing here. As the Iconic Midwesterner puts it, “Welcome to serfdom…”

UPDATE: Here’s the WaPo story.

wapo logo 2“What this lady [Kelo] wants is not more money,” Justice Antonin Scalia said. “She says I’ll move if it’s for the public good, but not just so that someone else can pay more taxes. This is an objection in principle that ‘public use’ in the Constitution seems to be addressed to.”

UPDATE II: Like Prof. Bainbridge says, “It’s a moral outrage.”

Wow. The arrogance is breathtaking. Other than his presumably grudging acceptance of the Constitutional requirement that the city pay fair market value for the land, the city’s counsel – one Wesley W. Horton – would make the creators of the old Soviet kolkhozy proud.

The Looming Nomination Battle

Tom Goldstein photo.jpegTom Goldstein at SCOTUSblog opines that the coming battle over Supreme Court nominations will be the fiercest ever. His proof: the recent Ramesh Ponnuru piece calling out Laurence Tribe on his recent Green Bag article which holds some pretty over the top claims.

Feel free to read the Tribe and Ponnuru pieces yourself. But there is a broader point here: what is a serious publication like National Review doing publishing something so profoundly silly as this long piece? Could it be a short blog post somewhere(heh, like here)? If it’s accurate, perhaps. But this is umpteen words in the print version of the National Review.

The only thing I can figure is that the battle lines for the next Supreme Court nomination are being drawn in frighteningly personal terms. Tribe is an icon of the left who probably would be involved in a nomination fight, so the National Review has now joined the Weekly Standard – you’ll remember its recent piece concluding that sentences in a book Tribe wrote a couple of decades ago had an “uncomfortable reliance” on a book by Henry Abraham, to whom Tribe had sent an advance copy and whom Tribe credited – at trying to take a (lame) crack at Tribe’s personal credibility. Ponnuru seems to hit a new low, however, in spending a lot of words trying to make such a trivial point about an essay that is actually about the death of Tribe’s father – a subject that Ponnuru essentially back-handedly mocks.

I agree with Tom to the extent that the Tribe story could have been relegated to a simple post in the blogosphere(i.e., my post). It must be said, though, that Tribe’s essay was over the top and he therefore is subject to some degree of scrutiny. However, the fact that one side thought the story merits inclusion in the print version of a nationally circulated magazine does provoke the looming fear that the nomination battle will be less than jovial.

Asbestos Bill Update

Reuters reports,

Washington – Destinations | TAP Air Portugal

WASHINGTON (Reuters) – Senate Republicans will meet again on Thursday to discuss a proposal for a $140 billion asbestos compensation fund, Sen. Arlen Specter said after a lengthy session on the issue on Wednesday.

Speaking after more than an hour with Senate Judiciary Committee Republicans and Senate Majority Leader Bill Frist, Specter said he was “considering” changes in his proposal to address Republican concerns. But the Pennsylvania Republican added that he still hoped to attract Democratic supporters as well.

Specter, the Judiciary Committee chairman, canceled what had been planned as a full meeting of the panel for Thursday in order to meet again with Republicans on the asbestos bill draft. Republicans have raised concerns about whether the proposed fund will provide a final cap on asbestos liability for business and insurers.

Ten Commandment Oral Arguments

Here’s Bloomberg’s report. on oral arguments that were heard today. The comments from the justcies were pretty predictable.

Several justices expressed support for letting the monument remain on the Capitol grounds. They noted that many legislatures open their sessions with a prayer and that the high court itself has a decorative frieze that shows Moses, holding a tablet depicting the commandments, among other historical lawgivers.

Out of Order' by Sandra Day O'Connor - The Boston Globe“You don’t object to that,” Justice Sandra Day O’Connor said to Duke University law professor Erwin Chemerinsky, representing homeless lawyer Thomas Van Orden of Austin, who challenged the monument. Later in the argument, though, she told the Texas attorney general that every monument on the state Capitol grounds “conveys a message of state endorsement.”


Justices Anthony M. Kennedy and Antonin Scalia spoke in favor of keeping the Texas monument on the Capitol grounds.

“If an atheist walks by, he can avert his eyes,” Kennedy said. Saying the government can’t accommodate religion is “hypocritical and it’s asking religious people to surrender their beliefs,” he said.

The commandments are “a profound religious message believed in by a vast majority of the American people,” Scalia said. “There’s nothing wrong with the government reflecting that.”

Justice John Paul Stevens questioned how far governments could go, asking Texas Attorney General Greg Abbott whether the state could display a crucifix of the same size outside the Capitol. Abbott said he doubted it, because a crucifix wasn’t a recognized symbol of law.

Noting that the monument contained religious symbols such as the words Chi and Rho and a star of David, Justice David H. Souter said it was hard to find there was “anything here but an expression of approval by the state of Texas for a religious expression.”

UPDATE: Lyle Denniston of SCOTUSblog has filed his report on the oral argument.

Kelo Arguments

From SCOTUSblog, Marty Lederman reports on Kelo v. City of New London oral arguments.

Marty reports that, based on the impression left by the oral arguments, the government-side is going to win today’s property rights cases overwhelmingly.

In Kelo, the plaintiffs may get as many as three votes: Scalia; Thomas (who did not ask any questions); and Rehnquist (who was not there). But it was clear to O’Connor and Kennedy that the Court would have to overrule Midkiff and Berman to rule for the plaintiffs, an approach for which there was no majority. The only possible silver lining for property-rights advocates was that Justices Kennedy, Souter, O’Connor and Breyer all expressed concern that the traditional measures of just compensation under the Fifth Amendment may be subject to reconsideration. Justice Kennedy acknowledged the question wasn’t presented in Kelo, but the Court’s opinion or a concurrence may raise the issue, opening a new avenue of property-rights litigation.

In Lingle, it appears that the government will win unanimously. As Justice Scalia put it at argument, the Court may have to “eat crow” and abandon the suggestion it has made in several cases that there is a “substantially advances” test for what constitutes a taking.

The moment of the day came in Kelo when the city’s counsel attempted to close by saying, “I want to leave you with just four words,” then his time expired. (Although he did say — using more words, “I see my time has expired so I won’t be able to tell you them.”) Justice Kennedy then asked the plaintiff’s lawyer on rebuttal, “You don’t happen to know what the four words were?” Regrettably, he didn’t.

Here’s to hoping the situation isn’t as bleak as the reporter suggests. Furthermore, I’m not sure that the Court would necessarily have to overrule Midkiff and Berman to rule for the plaintiffs. Comments later…if only there were more hours in the day.

Texas Supreme Court Gets Angry and Throws a Rock at Lower Court

…and Texas lower court runs home and tells mommy.

In Creditwatch v. Jackson, Denise Jackson filed suit against Creditwatch alleging sexual harassment. However, once defendants moved for summary judgment, Jackson amended her complaint alleging only…you guessed it…intentional infliction of emotional distress. To make a long story short, the case ended up in the hands of theTexas Supreme Court who whined opined,

For the tenth time in little more than six years, we must reverse an intentional infliction of emotional distress claim for failing to meet the exacting requirements of that tort.


This tort was never intended as an easier and broader way to pursue claims already protected by our expanding civil and criminal laws. If the tort is to remain viable where “gaps” still remain, litigants and judges cannot entertain it as a catch-all that avoids the careful balancing behind alternate legal claims.

Hat tip to Michael Fox

Kelo Optimism

Now all this doom and gloom from these reports must be taken with a grain of salt. I still remain optimistic that the plaintiff’s will salvage at least some nominal win here. Quin Hillyer of Southern Appeal writes,

An image posted by the author.So, why do I think the homeowners will do okay? Because I’m assuming three justices — Scalia, Thomas, and Rehnquist — will posit some fairly bright-line test of what “public use” means, and that the test does not extend as far as “public benefits from greater tax revenues.” I’m then assuming that Breyer and O’Connor will find some way to aggregate more power to the courts by seeing how thinly they can slice the “rational basis” apple. Clearly, those justices sympathize, and rightly so, with the homeowners, and I think they will look for some grounds to avoid killing the homeowners’ hopes. I also believe that Kennedy may join them, although he probably won’t because he’ll want to assert some kind of federalist principle that in this case isn’t really there (being superseded, logically, by the Constitution’s due process protections for property and — I uniquely argue — by its protections of the rights of contract).

Finally, oddly enough, I wouldn’t rule out Stevens coming down somewhere on the side of the homeowners, even if he has to concoct some theory out of thin air. He’ll see the NAACP and the AARP and other liberal advocates coming down on the homeowners’ side, and he’ll continue to see himself as the champion of the “little guy,” and so he may well make some sort of anti-big corporation argument and throw in references to Mussolini for good measure.

UPDATE: Phocion of Ex Post makes a good point. If Berman and Midkiff are so obviously controlling, why grant cert. at all? Either they intend to widen or restrict Midkiff’s ruling. Given the controversies and obvious abuses of eminent domain, it seems strange for this court(which is still by the way considered a conservative one) to widen the definition of “public use.”

Nonetheless, it would be very disappointing if some compromise is struck which only deals with “just compensation.” As Dahlia Lithwick’s article suggested, Kennedy and Breyer really seemed to focus in on the compensation issue.

UPDATE II: For the overly curious, the infamous four words of the respondent at the end of his argument were, “federalism, boundaries, discretion, and precedent.”

Padilla Wins in District Court for the District of South Carolina



As I’m sure you’ve heard, Jose Padilla, the alleged “dirty bomber”, won his case before the United States District Court for the District of South Carolina.

Padilla was originally apprehended at O’Hare Int’l Airport pursuant to a material witness warrant. He was held in New York in a federal prison until the President issued an order designating him an “enemy combatant.” He was then transferred to the Consolidated Naval Brig in Charleston, South Carolina, where he has been held ever since. After going through the appellate processes in the Second Circuit(losing at the district court, and winning on appeal), the Supreme Court granted cert. and ruled that “[t]he District of South Carolina, not the Southern District of New York, was the district court in which Padilla should have brought his habeas petition.”

So…we begin the process all over again in the Fourth Circuit. And as the headline reads, Padilla wins again. Now I’m not saying that Padilla isn’t a dirty little terrorist, but it seems pretty likely(although the 4th Circuit tends to sit right-of-center) that he’s going to win his appeal as well, although perhaps not as broad a win a this one. The distinction between a “capture” on foreign soil and one on domestic soil is significant, and provides a nice maneuver around Hamdi. Not to mention that even if the AUMF is read broadly to give authorization of domestic captures, the Constitution still applies. The point is, the govnerment needs to just charge the guy criminally(heck there’s certainly no lack of applicable criminal laws). Shoving “enemy combatant” status on a U.S. citizen arrested on domestic soil just doesn’t cut it.

What benefit could the government possibly glean from holding him as an “enemy combatant” rather than a run-of-the-mill criminal. Even at the most crucial point of his capture, the point at which the government could gather the most information out of him, he was held in a federal prison in New York.

Here’s the opinion.

UPDATE: There’s even a jab at Rumsfeld in the opinion.

This Court sits to interpret the law as it is and not as the Court might wish it to be.

UPDATE II: Around the Blawgosphere…

Jack Balkin
Michael Froomkin
Peggy McGuiness
Lyle Denniston
Orin Kerr

MGM DVD Class Action

This has the potential to claim the largest class action title away from those Wal-Mart employees. According to Slashdot,

MGM logo.png

Apparently all of MGM’s ‘theatrical wide screen’ DVD releases for the last few years have been the pan-scanned versions with the top and bottoms cut off. I checked this against my copy of CQ, and it’s true. The list (PDF) of butchered movies includes almost every Woody Allen film, Silence of the Lambs, and Ghost World, just to name a few. If you own any of the eligible movies, you have until March 31 to either opt to exchange your copy for $7.10, or a new DVD from MGM, presumably in its proper aspect ratio.”

The full list of DVDs is here. It looks like it includes everything MGM has put out over the past several years.

Michael Demtschyna discusses the technical aspect of this case.

User ImageVHS and TV demand 1.33:1 images (although thankfully this is changing). The simplest way to convert a 1.85:1 or 1.66:1 movie to 1.33:1 is to simply open up the top and bottom mattes on the original film. No important information is lost (as it is with the pan and scan process), since the movie was entirely composed within the frame of the negative. The only problem is that unnecessary information is now present at the top and the bottom of the image. Information that the director and cinematographer did not want you to see theatrically. Information that could well destroy the composition of a given image. Information that sometimes inadvertently includes Mr Boom Microphone and other unwanted movie nasties.

So, yes, “widescreen” transfers of 1.85:1 movies are not wider than their full frame counterparts. They are, however, more artistically correct, truer to the director’s and cinematographer’s intent, and how these movies were shown theatrically. Perhaps it would be more accurate to describe these transfers as “original theatrical aspect ratio” transfers rather than “widescreen” transfers.

So, back to the proposed class settlement. It is important to note that the quality of the DVDs under question is not at issue. The DVDs have all been correctly produced. They are not faulty. There will be no recall of the DVDs. There will be no remastering of the DVDs with a wider image – no wider image exists. They are not simply “pan and scan” DVDs which have been further cropped top and bottom. THERE IS NOTHING WRONG WITH THE DVDs. The only problem is that some have taken issue with the packaging of these DVDs describing them as “widescreen” when, very much on a technicality, they are not.