In a post below, I describe this scenario:

Say that we're fighting a World War II-like war, but against insurgent forces in various allied countries, and not against national governments. (You'll see in a moment why this proviso is important). We capture 50,000 alleged enemy soldiers, partly because some of the enemy forces have surrendered en masse; apparently we had captured millions that way towards the end of World War II. The allied countries don't have strong enough militaries to effectively detain these people themselves (think France in early 1945), so we detain them instead. This is actually quite normal for large-scale wars, consider again World War II, except that the war is a modern war against insurgents and not a traditional war against governments.

Now, the detainees file 50,000 petitions for habeas corpus, all claiming that they aren't actually enemy soldiers. . . . It sounds like they'll probably get to file their petitions, strain our courts, impose more burdens on our soldiers, and possibly even risk the disclosure of secret material. Litigation will become a tactic of warfare.

A couple of readers ask: If the result is so burdensome, why can't Congress just avoid it by suspending habeas corpus? Consider it a little constitutional law puzzle.

For the answer, click here.

Right on Race, founded by Tom Wood — the coauthor of Prop. 209 — and with posts by Roger Clegg (Center for Equal Opportunity), Todd Gaziano (Heritage Foundation), John Rosenberg (the Discriminations blog), and Tom himself. It also has an Open Forum section for reader submissions, which appears to be moderated (a good move, I think).

Sounds like a very interesting new resource, with some really first-rate contributors; check it out.

I've blogged below about one aspect of the Guantanamo detainees case; but here's the bigger picture: Say that we're fighting a World War II-like war, but against insurgent forces in various allied countries, and not against national governments. (You'll see in a moment why this proviso is important). We capture 50,000 alleged enemy soldiers, partly because some of the enemy forces have surrendered en masse; apparently we had captured millions that way towards the end of World War II. The allied countries don't have strong enough militaries to effectively detain these people themselves (think France in early 1945), so we detain them instead. This is actually quite normal for large-scale wars, consider again World War II, except that the war is a modern war against insurgents and not a traditional war against governments.

Now, the detainees file 50,000 petitions for habeas corpus, all claiming that they aren't actually enemy soldiers. This means civilian courts would have to process all those cases, and the military would have to respond to all the petitions, and get affidavits or even live testimony from various soldiers in the field whose testimony is relevant for this purpose.

Would this tactic be allowed? Well, let's consider this under the four elements (see below) that the Court pointed to when it distinguished the Guantanamo detainees (who get their habeas petitions considered) from the German detainees in Johnson v. Eisentrager (who didn't get their petitions considered).

Like the detainees at Guantanamo, our hypothetical detainees (1) "are not nationals of countries at war with the United States" — our war isn't with their countries, but with insurgencies in those countries. They (2) "deny that they have engaged in or plotted acts of aggression against the United States"; it costs them nothing to deny that. They (3) haven't "been afforded access to any tribunal, much less charged with and convicted of wrongdoing," partly because there's nothing to charge them with or convict them — we just want to detain them as enemy combatants, not try them for unlawful combat. They are held (4) "in territory over which the United States exercises exclusive jurisdiction and control" — imagine that for security reasons, we need to keep them at a base that's at least as controlled by us as Guantanamo is.

It sounds like they'll probably get to file their petitions, strain our courts, impose more burdens on our soldiers, and possibly even risk the disclosure of secret material.

Litigation will become a tactic of warfare. As I understand it, soldiers generally think they have an obligation to continue trying to harass their captors — for instance, by trying to escape — even once they're captured. Here we'd be giving them a cheap (for them) and safe way of doing that. If I were the other side's general, I'd actually teach my soldiers how to file habeas petitions (not everyone would have to know how to do that — there'd just have to end up being some soldiers in every prison camp who can write the petition on their comrades' behalf). This would be a very substantial burden, and one that to my knowledge we've never had to labor under.

Now there are three possible responses to this:

First, one can argue that, sure, this would be very expensive and burdensome, but that's the price we pay for justice. But I don't see any reason why this is a necessary price — one that the Constitution or an Act of Congress requires us to pay. In war, there is always the risk of injustice; innocents even unfortunately die, with no legal process for every bombing or attack to decrease that danger. It seems to me that people on the field of battle must run the risk of being erroneously detained as well as being erroneously killed. The constraints to that have traditionally been moral and political, not judicial; I see no reason why this should change.

Second, one can argue that there's really no such burden, since the military can always avoid habeas review of detentions just by keeping people outside Guantanamo, in places where the U.S. government has less complete control (for instance, on a base leased from a friendly country, which at least has the power to kick us out when it wants to). But what's the point of that? And beyond that, as I argue below, it isn't even clear under the Court's decision that this would indeed be enough to avoid the Court's judgment.

Third, one can argue that the military can avoid habeas review of detentions just by providing them with some modest "access to [a] tribunal" — for instance, a brief hearing before a military tribunal, such as that contemplated by article V of the Geneva Convention. This might indeed be a much lesser burden on the military, since it may involve only a brief hearing by military officers with highly truncated rules of evidence. And the military may often engage in such hearings in any case.

This would be the best spin that could be put on the Court's decision. But from the Court's opinion, it isn't clear whether such hearings would be sufficient (since they seem to be just one factor out of four). Even if they are, it isn't clear what sort of military process is sufficient to avoid any need for civilian review (which is what the writ of habeas corpus contemplates). And if they can be highly truncated, it isn't clear how much of a benefit they really will provide to anyone.

Finally, one can say that that is a different case, and we shouldn't let hypotheticals involving 50,000 detainees affect the judgment in a case involving several hundred detainees. But can entitlements on habeas corpus, which are individual rights, really turn on that? "If you're one of up to X detainees, you have an individual right to habeas corpus; but once more than X people are detained, you lose that right" — I can imagine the Congress enacting such a statute, but it would be a mighty odd rule for a court to come up with on its own.

So that's the source of my misgivings about the Court's Guantanamo decision. Let's hope that my concerns eventually prove groundless, and litigation does not indeed become one of the enemy's weapons of war.

UPDATE: Will Baude at Crescat Sententia responds. I don't think his analogy is quite right -- the right to trial for civilian crimes is very clearly established; the question here is whether we should in the first place recognize a novel right to civilian review of military detention of aliens captured overseas. Still, I thought it would be helpful to link to the argument.

In Rasul v. Bush today, the Court held that the Guantanamo detainees are entitled to have their detention reviewed, presumably by civilian courts, even though they're not U.S. citizens, and they're being held outside the U.S. Johnson v. Eisentrager, a 1950 case involving a similar petition brought by detained Nazi soldiers, seemed to hold the contrary -- but the Court distinguished Johnson on four grounds:

1. "[The Guantanamo detainees] are not nationals of countries at war with the United States." (In Eisentrager, the Court concluded that peace had not been officially declared.)

2. "[T]hey deny that they have engaged in or plotted acts of aggression against the United States."

3. "[T]hey have never been afforded to any tribunal [even a military one, as in Eisentrager], much less charged with and convicted of wrongdoing."

4. "[T]hey have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control."

A big part of the Court's decision focused on the fourth item -- but as Justice Scalia argues, the government's "exlusive jurisdiction and control" over Guantanamo isn't really that different from the government's exclusive jurisdiction and control over occupied Germany. Guantanamo has been controlled by the U.S. longer than German bases were (I suspect that today Germany has more legal authority over U.S. bases in Germany -- certainly it has more de facto authority, since if the Germans wanted to kick us out, we'd surely go, whereas we're not leaving Guantanamo even though Castro does want us out). But it's hard to see why that should make a difference.

But even if the fourth item is a possible ground for distinguishing Rasul from Eisentrager, the Court doesn't (unless I've missed something) explain whether exclusive jurisdiction and control is necessary for habeas, sufficient for habeas, or particularly important for habeas. What if the detainees had been kept in Afghanistan instead, or at a military base in no-longer-occupied Germany? I don't see how one can figure out from the Court's opinion whether they would then be entitled to petition the civilian courts for hearings. And the government does want to know this, since it wants to know where they should be kept.

Judge Richard Posner and Vicki Jackson square off in Legal Affairs.

Prof. Steven Taylor (PoliBlog) is running this, and it seems like a worthy project:

I have volunteered to help Dr. Safaa al-Hamdani, a biology professor at Jacksonville State University (another school here in Alabama) in a book drive to collect texts to help populate the Baghdad University library, which, between post-war looting and multi-decade neglect by the Saddam regime is in serious need of help.

While I am focusing my efforts on my university, and other schools in Alabama with which I have contact, I thought a note to the Blogosphere wouldn't hurt.

While books from any discipline are welcome, Dr. al-Hamdani notes that there is a special need for science, math and medical texts. Also, he asks that books no older than five years be collected, as given the cost of shipping we want to make sure we are sending usable books. Also, funds to help ship the books are also in need.

If you can help, please [email me at the address given] here.

If you are able to help, books or donations could be sent directly to me.

There is a brief news story about the book drive here.

Well, it turns out that the Moore/Letterman exchange I mentioned last week is indeed apparently fictional. (As I mentioned in the original post, "Don't know if it's true, and I won't assume that it is. But it's at least a good joke.") Nathan Florea says he has a more accurate transcript, which is very different, and he points to a file containing the relevant clip.

I couldn't get the file to work for me -- I saw the video, but not the audio, and I don't read lips much. But, especially given my original skepticism about the original version, I suspect that Mr. Florea is right. Another beautiful story ruined by ugly fact . . . .

alleged to have been fighting for al Qaeda or the Taliban? That was one of the issues in Hamdi and in Padilla.

A federal law, 18 U.S.C. 4001(a), says "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." Padilla and Hamdi argued that as a result they couldn't be detained unless they were accused of having violated some federal criminal statute.

Not so, the government argued, the post-September 11 Authorization for Use of Military Force authorized 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." Such "necessray and appropriate force," the government reasoned, includes the power to detain enemy combatants, as well as the power to shoot them on the battlefield -- military force has always been understood to include the power of military detention.

Five of the Justices in Hamdi -- Justice O'Connor, joined by Chief Justice Rehnquist, Justice Kennedy, and Justice Breyer in the plurality, plus Justice Thomas in his dissenting opinion -- took the view that the Authorization allowed military detention at least of citizens who are "'part of or supporting forces hostile to the United States or coalition partners' in Afghanistan and who 'engaged in an armed conflict against the United States' there." That's why Hamdi lost on the statutory question.

But what about Padilla, who is alleged to be an enemy combatant, but who apparently wasn't engaged in an armed conflict against the United States in Afghanistan? Well, four of the Justices in Hamdi -- Justices Souter and Ginsburg, who partially concurred in Hamdi, and Justices Scalia and Stevens, who dissented -- disagree with the view I give above, and think that the Authorization doesn't apply even to Hamdi. It follows that they think it shouldn't apply to Padilla, either.

And in Padilla, which was disposed of on procedural grounds, Justice Stevens's dissent said, in footnote 8, that "I believe that the Non-Detention Act . . . prohibits -- and the Authorization for Use of Military Force Joint Resolution . . ., does not authorize -- the protracted, incommunicado detention of American citizens arrested in the United States." And the dissent was joined by Justices Souter, Ginsburg, and Breyer, who was in the plurality in Hamdi. So it sounds like five Justices think that Padilla should win on this statutory issue.

Now there is some question as to whether the five Justices' view of the 4001(a)/Authorization interplay in Hamdi is binding precedent. Lakewood v. Plain Dealer Publishing, 486 U.S. 750, 764 n.9 (1988), says that "when no single rationale commands a majority, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgmen[t] on the narrowest grounds,'" and seems to reject the notion that one can add up votes from the plurality and the dissent. On the other hand, I suspect that lower courts will conclude that the five Justices' views are indeed binding on them.

On the other hand, I suspect that many lower courts would be reluctant to mix four Justices' views from one case (Hamdi) with one extra Justice's views in another (Padilla), especially when those views came in a footnote to a dissenting opinion written by another Justice (though, to be sure, an opinion that Justice Breyer did join without reservations). So in future cases involving Padilla -- I assume that Padilla can refile his case in the proper district, and thus avoid the procedural problem that led the Court to reject his claim -- lower courts would be free to conclude that Padilla loses on the 4001/Authorization question. What the Supreme Court will do with that, when and if Padilla's case comes back to the Justices, is impossible to tell, especially given that it could take years (assuming Padilla continues to be detained for that long), and some of the Justices might retire by then.

Note that Justices Scalia and Thomas are about as far apart as possible in the Hamdi case. Justice Scalia would say that the military essentially has no power to detain citizens, except when Congress suspends habeas corpus, or when the citizens are promptly tried through the civilian criminal system. Justice Thomas would say that the President has very broad, nearly unreviewable, power in this situation.

This is just further evidence that the "Justice Thomas follows Justice Scalia in lockstep" argument that some have made is simply a slur on Justice Thomas. We've seen lots of cases where Justice Thomas has taken a different view from Justice Scalia — consider his opinions on the scope of the Commerce Clause, the scope of the Ex Post Facto Clause, the protections offered to anonymous speech, the Excessive Fines Clause, crossburning, and more.

In many cases, of course, the two agree: They were appointed, after all, by conservative Presidents, and come from the same conservative legal movement. We should be no more surprised by this agreement than by, say, Justice Brennan's and Justice Marshall's frequent agreement.

But cases such as Hamdi show that Justice Thomas has his own views, which do indeed differ in many important ways from Justice Scalia's; and he can forcefully and eloquently express them. Many people will of course disagree with his decisions, either the separate ones or the ones on which he joins Justice Scalia (or vice versa). But they should disagree on the merits, rather than by casting aspersions on his ability or willingness to think independently.

See here for Larry Solum's summary and roundup of reactions.

Unless plans change, I should be on (1) Warren Olney's To The Point radio show today (see here for the station list and times), and on (2) the Abrams Report (MSNBC). I should be talking about the Guantanamo cases, Hamdi, and Padilla on both shows.

Note that TV networks often cancel such interviews at the last minute, which is why I say "unless plans change."

UPDATE: MSNBC did indeed cancel -- that's the TV biz for you.

Marty Lederman, a very knowledgeable lawyer and Court-watcher, posts his thoughts at SCOTUSBlog.

I've only read the Hamdi case so far, but here's a tentative thought (subject to revision as I read the other cases and rethink the matter) — two significant facts in this case are that Justice Scalia voted against the government, and Justice Breyer voted (partly) in favor of the government.

This is because these votes may well change the political dynamics within the conservative and liberal movements. I know there are quite a few conservative lawyers and policy wonks who are uneasy (whether rightly or wrongly) with broad assertions of military powers even during wartime. And I'm pretty sure there are quite a few liberal lawyers and policy wonks who are uneasy (again, whether rightly or wrongly) with what they see as a September 10th attitude towards civil rights during wartime.

But many such people may find it hard to argue these positions within their own movements, because (1) they may themselves be unsure of their positions, and (2) it's always hard to argue to one's friends something that seems like it's supporting "the other side." I'm not speaking here of fear of professional retaliation or such things — I'm speaking of the natural and often laudable human tendency to question one's own views when they contradict those that are held by people one likes and respects, and of the natural human tendency not alienate one's friends by seeming to join their political enemies. The tendency is only a tendency; many conservatives have disagreed with some of the Administration's actions in this field, and many liberals have agreed with the Administration. But I suspect that some in both camps have been reluctant to do so, for the reasons I note.

In such situations, having allies that are authoritative within one's own movement can greatly embolden dissenters within those movements. It's much harder for conservatives to harshly criticize fellow conservatives for adopting a position that Justice Scalia has adopted. A conservative who quietly holds such seemingly "liberal" views would thus be reinforced in those views, and emboldened to voice them. Many of his fellow conservatives will still disagree with him; but he'll suspect that the disagreement will be more cordial, and less firm, if he can enlist Justice Scalia on his side.

Likewise, I suspect, for many liberals who can enlist Justice Breyer on their side. Breyer is probably not as liberal on constitutional issues as Justice Scalia is conservative (though that's of course hard to measure). I also suspect that he's not as important to liberals as Justice Scalia, who has long been one of the leaders of the conservative legal movement, is to conservatives. Still, his votes on race preferences, on federalism, on many (though not all) criminal justice cases, on many (though not all) church-state cases, and in other fields make him quite respected by most liberals. So a liberal lawyer will thus feel more comfortable making at least mildly pro-Administration arguments (recall that Justice Breyer voted partly for the Administration and partly against it here) when he can point to Justice Breyer's vote.

Again, I stress that I'm talking here just of factors that may influence how firmly people hold their views, and how vocal they are about those views — they're unlikely to vastly sway large groups of people (in part because most liberals voted against Justice Breyer's views, and most conservatives voted against Justice Scalia's). Furthermore, I'm speaking here only of effects in legal or policymaking circles; I'm not sure how much the public at large is influenced by Justice Breyer's or Justice Scalia's views.

But these are important circles. It matters how often conservatives are willing to make arguments skeptical of military power to other conservatives, and how often liberals are willing to make arguments that support military powers to other liberals. And I think that Justice Scalia's and Justice Breyer's votes will indeed affect the frequency of such intramovement arguments — arguments that I think are on balance good, both for the country and (at least in the medium and long run) the movement — and thus have significant extralegal effects as well as purely doctrinal ones.

Off to pick up the printouts.

wasn't announced today, I'm told; that means it'll come down later this week. Likewise for Alvarez-Machain, the foreign torts case.

which is to say that they are entitled to a civilian court's hearing their habeas petitions. I say "apparently" because I haven't yet read the opinion; will blog more as I read it. I'm pretty shocked by the result, but I may be less shocked when I read the details.

Today's L.A. Times story about Sam Raimi, the director of Spiderman and Spiderman 2, started with these paragraphs:

Most of the furnishings in Sam Raimi's office on the Columbia lot seem accidental -- things that have survived the siege of finishing "Spider-Man 2." There's the big monitor on a cart stuffed with playback devices, the tinfoil taped to the windows to keep sunlight (and inquiring eyes?) out, the well-worn couch and coffee table. But what fills the wall behind his desk is clearly no accident -- an American flag that's about as long as Raimi, at 5 feet 9 inches, is tall.

Since Hollywood is a part of our nation where the "stars and bars" in most directors' lives are not hung on the wall, and given that the very last images of his film feature a pair of such flags waving in the breeze after his hero has created them on a typical web-slinging swing down a Manhattan avenue, the question seems inevitable: What do the flags mean to Raimi? . . .

Now, as best I can tell, the only standard meaning of "stars and bars" is the first Confederate flag (thanks to Wikipedia for the image):

A few dictionary checks (for instance, one through dictionary.com) confirmed that this is the only standard meaning of "stars and bars." Am I missing some deep joke or reference here? Or did the author just err?

I mention this because I think this minor error (if error it is) is relevant to a broader point I'd like to make about writing; but before I build too much on this, I'd like to make sure that it is indeed an error. So if you have a plausible explanation for why the story might be right after all, please let me know at volokh at law.ucla.edu.

from the Interactive Citation Workstation. I checked out the Bluebook exercises, and they look like a pretty good tool for Bluebooking practice. There are also exercises that teach the ALWD Citation Manual. Both seem to be free to LEXIS student users.

If any of you can recommend other free online resources for this, please let me know. Also, if you have had bad experiences with the ICW exercises, please let me know as well. I plan on recommending these (and others) in a future edition of my Academic Legal Writing book, and I want to make sure that they're worth recommending. So far they seem pretty helpful.

There's been a lot of discussion about the implications of Blakely v. Washington (decided last Thursday) for various sentencing schemes; I have nothing to add to that. But I did want to flag one issue: What does Justice Scalia's opinion suggest about nonunanimous and less-than-12-member criminal juries?

When most people think of the right to trial by criminal jury, I suspect they think of unanimous 12-member juries. But the Supreme Court has held that the constitution generally does not require either a 12-member jury, or that the 12-member jury be unanimous. (Smaller 6-member juries do have to be unanimous.) Oddly, the unanimity requirement has been applied to federal juries, because of a one-Justice concurrence by Justice Powell in the early 1970s. (This is one of the few ways in which the Bill of Rights has been applied differently to states via the Fourteenth Amendment than to the federal government.) For the key cases on this, see Apodaca v. Oregon, Johnson v. Louisiana, and Williams v. Florida; the nonunanimous jury cases were 5-4 (Justices Douglas, Brennan, Stewart, and Marshall dissenting), and the less-than-12-member jury case was 8-1 (Justice Marshall dissenting). In practice, as I understand it, the unanimity requirement is the norm in nearly all states, and most states use twelve-member juries (at least in fairly serious cases). But according to the Court's precedents, that's not a constitutional command.

Justice Scalia's majority opinion in Blakely, though, twice quotes Sir William Blackstone's 1765 formulation of the jury trial right as providing for "the unanimous suffrage of twelve of his equals and neighbours." Both times, the opinion mentions this while discussing what the Jury Trial Clause of the Sixth Amendment (incorporated against the states via the Fourteenth Amendment) commands.

Now the Court is of course only talking about the scope of the jury trial guarantee -- the extent to which it applies to sentencing factors -- and not the size or voting requirements of the jury. Many or all of the Justices in the majority might not have seriously considered whether the "unanimous suffrage of twelve" requirement really should be a constitutional command.

Still, the opinion, especially its references to Blackstone, does stress the importance of the guarantee's original meaning, and does take the view that the Sixth Amendment generally constitutionalizes the common-law jury trial right. This suggests that at least some Justices -- and perhaps a majority -- may be willing to revisit the nonunanimous jury issue (which, as I mentioned, was 5-4 when the Court decided the matter, and on which a change of course would affect only a few states) or even the jury size issue.

Incidentally, for whatever it's worth, at least one news account (by David Savage in the L.A. Times) also thought the unanimity reference was important, though without discussing the details I mention above.

Many thanks to Cass Sunstein, Glen Whitman, and Neal Whitman for guest-blogging while I was out of town — I much appreciated their posts, and I hope you did, too. Please check out Glen's and Neal's own blog, Agoraphilia. (I'd recommend Cass's blog, too, except he's one of the few law professors who still don't have one . . . .)

I got over 50 responses to my Jews and "Jewish People" post; I hope to post some brief thoughts on the subject Tuesday (though unfortunately I won't be able to respond individually to each message).

Several people also pointed out that the author of the Slate Kerryisms column has posted a response to various criticisms of the column, including my own criticisms. I'll blog about that Tuesday, too. The response was posted last Tuesday, but I was out of town at a conference from Wednesday to Friday, and thus couldn't react more promptly.

The Supreme Court will be announcing its decisions on Monday, including possibly the military detention cases (Hamdi and Padilla), the Guantanamo cases, and the latest cyberporn case (Ashcroft v. ACLU II), though it's possible that it will save some of these for later in the week. I hope to blog quite a bit about them Monday, which is why I'm saving the other items until Tuesday. (If the Court decides to announce some of the cases Tuesday, I'll bump the other stuff until Wednesday or later.)

InstaPundit has excerpts from some news articles on this. I think an apology was indeed warranted (see here and here).

But as I told the New York Sun reporter who first broke the story, I think this is all that can be done and all that needs to be done here. It would surely have been much better if Judge Calabresi hadn't made his statements; but now that they have been made, an apology is the only sensible remedy.

Some people say that he should recuse himself from various cases involving the Bush Administration, but I doubt that this is really called for: The statements didn't tell us more than we already know about many judges, which is that they really don't like George W. Bush -- if we recused all judges who had strong political sentiments from all politically charged cases, we wouldn't have a lot of judges left. Nor do I think that the comments were egregious enough to warrant some more formal reprimand from the court. The apology was thus both the right thing to do, and the tactically smart thing to do. You can accomplish a lot with a prompt apology.

Incidentally, if anyone has a pointer to a copy of the letter of apology, I'd love to post it; I doubt it has anything much more enlightening than what the newspapers say, but I think it's generally good to have the original documents as well as the media-filtered versions.

Why do some people think that it's more polite to say "Jewish people" than "Jews"? I've heard some people say that "Jews" is somehow considered rude, and "Jewish people" is better, but I just don't see why.

Does anyone know the story here? People don't generally say "black people," "Catholic people," or "female people." Why should they call us "Jewish people" rather than just "Jews"? I don't quite get it.

(I'm not saying that "Jewish people" is wrong -- if you want to say that, it's fine with me, though it will sound affected to me and people who think like me, at least until we're persuaded that "Jews" is somehow bad.)

I'm also pleased to report that Glen Whitman and Neal Whitman, who usually blog at Agoraphilia, will be guest-blogging here from Wednesday to Friday.

Glen is a good friend of mine, a solid libertarian (much more so than I am), and an economics professor at Cal State Northridge. Neal is a Ph.D. in linguistics, and, as it happens, Glen's brother (what a coincidence!). It's a great pleasure to have them both here.

To reach them, e-mail Glen at glen.whitman at csun.edu, or Neal at nealwhitman at yahoo.com; their addresses are also available at Agoraphilia.

I'm delighted to say that Cass Sunstein will be guest-blogging here for the next few days, posting occasionally about his new book, The Second Bill of Rights.

Cass, a constitutional law scholar at the University of Chicago Law School, is one of the most influential law professors in the country (and is in fact the full-time U.S. law professor whose work has been cited the most times in scholarly legal periodicals). He has written over a dozen books and a vast number of articles on a wide range of topics; see here for just a small subset, or here for the whole daunting list. It's a real privilege to have him participating here, even if only for a short while.

Those who know Cass's work know that he and I disagree on many things. I suspect that many of our readers, especially conservatives and libertarians, will likewise disagree with the views he expresses in his new book and in the posts that are based on the book. Nonetheless, I think this is a great opportunity for the blog's readers to see what one of the most thoughtful and accomplished scholars in another camp is thinking and writing about.

Cass's e-mail address is csunstei at uchicago.edu; if you have any comments on his posts, please e-mail them to him. Please note, though, that he may not have the time to reply to all the comments (which is to say he adheres to the same e-mail policy that we do).

Dan Gifford passes this along; it was apparently transcribed by a listener, purportedly from the June 18, 2004 Late Show with David Letterman. Don't know if it's true, and I won't assume that it is. (UPDATE, 6/28/04: It is indeed apparently not true. Rats!) But it's at least a good joke:

David Letterman: How do we know what's in your film [Fahrenheit 9/11] is true?

Michael Moore: Because I got most of my information from The New York Times.

Audience: Wild laughter.

Letterman: Strains to repress laughing

Moore: What's so funny?

(I should mention that Moore was indeed on the June 18 show, but the excerpt available on the highlights site is only of Moore's memories of his Oscar night).

As I mentioned in my posts yesterday (here and here), my criticisms of Judge Calabresi's remarks were premised on the remarks' having been accurately quoted and paraphrased. All I have to go on is the New York Sun article, and there's always the risk that the article is in error.

It seems that tne source is implicitly confirming the accuracy of at least Calabresi's Hitler/Mussolini quote: DownWithBush, a blog that harshly -- though in my view unpersuasively -- criticizes the criticisms of Calabresi. (I think my original post adequately rebuts those arguments.) But nothing in the blog post, written by someone who was in the audience during Calabresi's speech, suggests that Calabresi was quoted incorrectly. So I'm somewhat more confident than I was yesterday that Calabresi's comments were as described -- and I remain quite confident that if they were as described, they are unsound and improper.

However, I stress again: If anyone who was in the audience has a different recollection of the comments (or the same recollection) I'd very much appreciate hearing about it. A transcript or an audio recording of the panel would be better still.

Today is the 35th anniversary of the infamous Cuyahoga River fire in Cleveland -- one of the seminal events in the history of environmental law. Oil and debris apparently accumulated under a railroad trestle and briefly caught fire. News of the "burning river" spread across the nation, helping to galvanize the emergent environmental movement.

After all, if a river could catch fire, environmental problems must have gotten really bad. Indeed, many argue the river fire sparked the eventual passage of the Clean Water Act.

The story of the Cuyahoga River fire is a canonical tale, but my friend Jonathan Adler -- a law professor at Cleveland's Case Western Reserve University -- argues in the Fordham Environmental Law Review that much of the story is a fable.

While many point to the fire as evidence of ever-worsening environmental conditions, Jonathan argues that water quality had already begun to improve before the fire. The Cuyahoga River was heavily polluted, to be sure, but it was starting to turn the corner.

From the 1880s to 1950s, fires on industrial rivers and harbors were rather common, and rarely elicited comment. Much pollution was accepted as the inevitable and unavoidable cost of industrialization. As the nation became richer, attitudes changed, and cleanup efforts began, even before the adoption of federal laws. River fires were rare by the 1960s, largely due to state and local cleanup efforts.

The 1969 fire attracted national attention more because of increased environmental consciousness than because environmental quality was steadily getting worse. It's a complex story, but quite interesting. I'm not an environmental expert, but Jonathan is, and I've found his work to be trustworthy and eminently readable.

One item of note from Jonathan's article. The fire received national attention when highlighted in Time, but the picture of a river aflame accompanying the article wasn't of the 1969 fire at all -- it was of a much worse 1952 fire. There are apparently no pictures of the 1969 fire itself because the fire was out before any photographers arrived. So the image many remember of the river on fire isn't of the famous fire at all.

Professor Bainbridge has a puzzle about the two -- you wouldn't think they'd go together, but apparently they do. I read all the Jeeves books, and many other Wodehouse books, and liked them very much; but I confess I have no idea what the answer is.

A google search for Gay Eugene, it turns out, yields the Volokh Conspiracy as the #1 result. I learned this from a friend of Sasha's (who goes by Inspired Turnip), who did the search because she was looking for "a gay business directory" "to find a man with a flair for interior decorating to help me choose window treatments for my home here in Eugene, Oregon." Hey, we'll take traffic however we can get it.

Manly elegance is obviously a hard standard to reach, and en route we are likely to go astray. Cary Grant once said, "Every man wants to look like Cary Grant. I want to look like Cary Grant." The cinematic version of Grant, the Grant icon, at once combines the virtues of style and manliness, of suavity and physical courage. . . . There are women of my acquaintance, maybe of yours, who claim to find Grant too "femmy," but that bespeaks only a desire for rough trade that they should perhaps examine more closely. If Cary Grant isn't man enough for you, there's something wrong with your picture of manhood.

Slate's increasingly surreal Kerryisms column has this entry today:

Question: What kind of Democrat are you?

[This is the edited version, Slate's view of what Kerry presumably should have said:] Kerry: A thinking Democrat. You can call me an old-fashioned New Deal Democrat. I'm not going to break faith on Social Security. I'm not going to abandon people who are struggling to earn a decent wage.

—Time, Feb. 9, 2004

[This is what Kerry actually said:] A thinking Democrat. You can call me an old-fashioned New Deal Democrat on X or Y. I'm not going to break faith on Social Security. I'm not going to abandon people who are struggling to earn a decent wage. But call me a New Democrat when it comes to creating jobs and being entrepreneurial and understanding the bottom line of business.

The Slate version basically cuts out (as a supposed "caveat" or "curlicue") Kerry's last line -- and in so doing utterly destroys Kerry's point that he's "A thinking Democrat."

What Kerry means by "thinking Democrat" is a Democrat who isn't in lockstep with any particular ideology, but who thinks through each question on its own merits. On Social Security and the interests of working people, he sides with the old-fashioned New Deal Democrats. On the importance of a good climate for business, he sides with New Democrats. I set aside whether that's a good position, or whether it's an accurate summary of Kerry's position. But it's a perfectly sensible response to the question, both as a matter of policy and politics -- in fact, it's probably the politically savviest response.

Slate removes the New Democrat part (and its foreshadowing in "on X or Y," which is in context Kerry's way of indicating that he's an old-fashioned New Deal Democrat only on some things). Amazingly, it leaves in the "thinking Democrat" line -- but now there's nothing to make clear that by "thinking Democrat" Kerry means a Democrat who chooses the best of the various strands of Democratic thought. The Slate edit makes Kerry sound as if he's saying that the only "thinking Democrat" is the "old-fashioned New Deal Democrat," which is nearly the opposite of what Kerry is trying to say.

What is the author of this column thinking? He's not editing out the "caveats" and "curlicues" -- he's editing out the heart of Kerry's message. Surely he doesn't think that any message more complex than "I am a staunch New Dealer" or "I am 100% New Democrat" is inherently too "embellish[ed]." But then what is he trying to do?

This piece (thanks to InstaPundit for the pointer) strikes me as very persuasive. I don't know the facts well enough to vouch for the accuracy of her remarks, but they seem accurate based on what little I do know -- and if they are accurate, then they're a powerful indictment of the U.N.'s double standards on this.

(another in my series of posts today on the Court's Hiibel decision):

The most interesting debate in Hiibel has to do with the privilege against self-incrimination. Though the text of the Fifth Amendment only bars "compell[ing] [any person] in any criminal case to be a witness against himself," the Court has applied this to pretrial questioning as well as to questioning of witnesses at trial -- not unreasonable, since otherwise the provision could be easily circumvented by forcing people to make statements before trial, and then introducing those statements into evidence against them. And the Court has generally held that the Amendment covers not just forced confessions ("I did it, and I'm glad"), but also forced statements that may indirectly suggest the person's guilt, or even that may lead to the discovery of evidence against him. Moreover, as Justice Stevens points out in his dissent, requiring a person to give his name will often lead to the discovery of evidence against him, especially when the police are asking precisely because they reasonably suspect criminal activity.

Justice Kennedy's majority reasons otherwise: "Answering a request to disclose a name is likely to be so insignificant in the scheme of things as to be incriminating only in unusual circumstances." In this very case, the opinion points out that Hiibel himself had no "articulated real and appreciable fear that his name would be used to incriminate him, or that it `would furnish a link in the chain of evidence needed to prosecute' him."

Yet it seems to me that if the police ask suspects their names, that's probably because they think that the name will often help uncover evidence of crime. Maybe, as the majority itself suggests, the name "may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder." Or maybe it will make it easier for the police to more effectively question others about the suspect's behavior, even after they let the suspect go. And when the police have stopped a person because they have reasonable suspicion to think he has committed a crime, and the person wouldn't give his name voluntarily, it seems fairly likely -- not certain (because maybe the person is just very concerned about his privacy, as Hiibel might have been), but fairly likely -- that the name is indeed evidence that can be used against the suspect.

What's more, how would the majority's decision play out in practice? The majority acknowledges that "a case may arise where there is a substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense," and in such a case, the Fifth Amendment privilege would apply.

But how would such a case be litigated? Say that the police stop me, ask my name, and I take the Fifth. Do they have the right to arrest me, on the theory that I've violated the compelled identification statute? (Of course, the statute must be read as not punishing the exercise of my constitutional rights.) Or do they lack probable cause to believe this, since for all they know my identity may indeed implicate me in a crime?

Of course, in this situation taking the Fifth would itself be incriminating in one sense: Since only those who think they might be incriminated have the constitutional right to take the Fifth, the police would be practically correct to be extra suspicious of people who assert their Fifth Amendment rights. And yet I assume that the police ought not be allowed to arrest someone simply because the person has asserted his constitutional rights, even if a practical person would find it highly suspicious. (When a person asserts his Fourth Amendment rights and refuses to consent to a police search, most lower courts don't let the police build probable cause based partly on the consent -- the police would have to have probable cause independently of the refusal. Likewise, a person's taking the Fifth may not be argued to the jury as evidence of his guilt.)

To be sure, some Supreme Court cases have upheld requirements that people say various things that include their names -- file tax returns, for instance, identify themselves to other drivers when they're involved in an accident, or identify themselves when they're being booked for a crime at the police station. But those decisions have repeatedly rested on the theory that the identification is needed for non-law-enforcement purposes: collecting taxes, facilitating civil litigation, or keeping track of whom the government is keeping in jail. The purpose of Terry stops, on the other hand, is all about law enforcement.

Now maybe the majority's result is still right. Maybe, as some have suggested, the Fifth Amendment should simply bar the use of compelled statements themselves as evidence, but should let the government use as evidence the material that the government gathers indirectly based on compelled statements (the so-called "fruits" of the statement). This might be more consistent with the text of the Amendment. Or maybe there should be a separate rule for compelled self-identification, which one might say is less likely to offend the principles behind the privilege against self-incrimination, whatever those principles may be (there's a hot debate about that).

But it seems to me that on its own terms, the majority's argument isn't terribly persuasive; Justice Stevens seems to have the better of it.

(another in my series of posts today on the Court's Hiibel decision).

The Court held that forcing someone to reveal his name doesn't make the stop an unreasonable seizure. The proper test, the Court said (correctly, given the Court's precedents), is that "The reasonableness of a seizure under the Fourth Amendment is determined 'by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate government interests.'" The government interests, the Court said, are strong:

Obtaining a suspect's name in the course of a Terry stop [i.e., a brief stop based on reasonable suspicion] serves important government interests. Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder. On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their efforts elsewhere. Identity may prove particularly important in cases such as this, where the police are investigating what appears to be a domestic assault. Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.

Curiously, the Court didn't go into detail about the "Fourth Amendment interests" side of the balance; but presumably it concluded that requiring to give one's name isn't a very serious intrusion into privacy.

Justice Stevens didn't reach the Fourth Amendment question. Justices Breyer, Souter, and Ginsburg rested almost entirely on past cases:

Justice White, in a separate concurring opinion [in Terry v. Ohio], set forth further conditions [beyond the majority's requirement that a brief stop be based on reasonable suspicion]. Justice White wrote: "Of course, the person stopped is not obliged to answer, answers may not be compelled, and refusal to answer furnishes no basis for an arrest, although it may alert the officer to the need for continued observation."

About 10 years later, the Court, in Brown v. Texas, 443 U.S. 47 (1979), held that police lacked "any reasonable suspicion" to detain the particular petitioner and require him to identify himself. . . . The Court referred to Justice White's Terry concurrence . . . [, a]nd it said that it "need not decide" [whether an identification requirement was constitutional].

Then, five years later, the Court wrote that an "officer may ask the [Terry] detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obliged to respond." Berkemer v. McCarty, 468 U.S. 420, 439 (1984) (emphasis added). See also Kolender v. Lawson, 461 U.S. 352, 365 (1983) (Brennan, J., concurring) (Terry suspect "must be free to . . . decline to answer the questions put to him"); Illinois v. Wardlow, 528 U.S. 119, 125 (2000) (stating that allowing officers to stop and question a fleeing person "is quite consistent with the individual's right to go about his business or to stay put and remain silent in the face of police questioning").

This lengthy history — of concurring opinions, of references, and of clear explicit statements — means that the Court's statement in Berkemer, while technically dicta, is the kind of strong dicta that the legal community typically takes as a statement of the law. And that law has remained undisturbed for more than 20 years.

There is no good reason now to reject this generation-old statement of the law. There are sound reasons rooted in Fifth Amendment considerations for adhering to this Fourth Amendment legal condition circumscribing police authority to stop an individual against his will. [Citing the Stevens dissent; more on the Fifth Amendment issue later. -EV] Administrative considerations also militate against change. Can a State, in addition to requiring a stopped individual to answer "What's your name?" also require an answer to "What's your license number?" or "Where do you live?" Can a police officer, who must know how to make a Terry stop, keep track of the constitutional answers? After all, answers to any of these questions may, or may not, incriminate, depending upon the circumstances. [Again, more on the Fifth Amendment question later. -EV] . . .

The majority presents no evidence that the rule enunciated by Justice White and then by the Berkemer Court, which for nearly a generation has set forth a settled Terry stop condition, has significantly interfered with law enforcement. Nor has the majority presented any other convincing justification for change. I would not begin to erode a clear rule with special exceptions.

Interestingly, even the dissent doesn't squarely argue against the majority's reasoning about the importance of the government interests, or the majority's implied judgment that the intrusion on Fourth Amendment interests isn't very severe. It relies chiefly on concurrences, on one tangential majority dictum (from Wardlow) and one square statement in a majority opinion (from Berkemer) that is nonetheless still dictum — which is to say, a statement that wasn't necessary to the decision of the past case, and thus isn't binding precedent.

It seems to me that the majority's Fourth Amendment holding is probably sound, though reasonable minds can certainly differ on this. But in any event, even if there are very strong arguments against it, the dissent doesn't really provide them.

The Curmudgeonly Clerk points this out, and it seems to me that he's right. Here's what the New York Sun reports about Judge Calabresi's comments to the American Constitution Society (the liberal counterpart to the Federalist Society):

The 71-year-old judge declared that members of the public should, without regard to their political views, expel Mr. Bush from office in order to cleanse the democratic system.

"That's got nothing to do with the politics of it. It's got to do with the structural reassertion of democracy," Judge Calabresi said.

Here's what Code of Judicial Conduct Canon 7 says:

A. A judge should not:

(1) act as a leader or hold any office in a political organization;

(2) make speeches for a political organization or candidate or publicly endorse or oppose a candidate for public office;

(3) solicit funds for or pay an assessment or make a contribution to a political organization or candidate, attend political gatherings, or purchase tickets for political party dinners, or other functions.

B. A judge should resign the judicial office when the judge becomes a candidate either in a primary or in a general election for any office.

C. A judge should not engage in any other political activity; provided, however, this should not prevent a judge from engaging in the activities described in Canon 4.

Seems to me that if Judge Calabresi's remarks were accurately paraphrased — a big if, I realize — they were a judge's "publicly . . . oppos[ing] a candidate for public office." Calling on "members of the public" to "expel" an officeholder who's up for reelection certainly sounds like publicly opposing a candidate for public office. (Canon 4 does let a judge say various things related to "the law, the legal system, and the administration of justice," but as I read Canon 7, the prohibitions in 7(A) and 7(B) are absolutely, and only the prohibition in 7(C) is subject to the Canon 4 exception.)

It's possible (though far from certain) that, given the Supreme Court's decision in Republican Party v. White (2002), that Judge Calabresi can claim his speech is protected by the First Amendment, notwithstanding Canon 7. Nonetheless, even if Canon 7 can't be legally binding for that reason, it is (as I understand it) a pretty authoritative ethical judgment about how judges should behave, and thus an important ethical constraint. It seems that the comments at the American Constitution Society meeting transgressed that constraint.

Note, though, that this of course assumes that Judge Calabresi was correctly paraphrased. Subtle differences in his precise words might well make for substantial differences in the legal analysis. If anyone has a tape or transcript of Judge Calabresi's remarks, or can even pass along his personal recollection, I'd love to hear about it.

(This, of course, is an entirely separate criticism from the one I mentioned here.)

I'm pleased to say that Michael H. Schill, a law professor at NYU (where he specializes in housing law and policy), has been named dean here at UCLA Law School. I don't know him much, but all I've heard about him suggests that he'll do an excellent job.

The question in today's Hiibel v. Sixth Judicial District Court decision from the Supreme Court is: Once the police stop a person based on reasonable suspicion that he may be involved in criminal activity, may the police demand that he identify himself (backed by the threat of legal punishment should he refuse, or should he lie)?

The Court's answer: "yes," at least so long as (A) the demand is "reasonably related to the circumstances justifying the stop" (which will almost always be so), and (B) there is no "substantial allegation that furnishing identity at the time of a stop would have given the police a link in the chain of evidence needed to convict the individual of a separate offense" (it's not clear how often this will be so). If condition (A) isn't satisfied, then the person's Fourth Amendment to be free from unreasonable seizures would be violated. If condition (B) isn't satisfied, then the person's Fifth Amendment rights to be free from compulsion to incriminate himself might possibly be violated.

Here are the questions not involved here: (1) May the police stop someone without any suspicion, but just based on an articulable hunch, or a random stop policy, to demand identification? (2) May the police require that the person present some written identification? (3) May the police require identification when the person is driving, or when the person is entering a public building, or in similar contexts? (4) May the police simply ask a person, without the threat of legal sanction, who he is? The answer to #4 is "yes"; the answer to #3 is generally yes, though it depends on the context; the answers to #1 and #2 are still unknown. (UPDATE: Let me clarify briefly my point as to #1 -- as reader Duncan Frissell points out, Brown v. Texas (1979) struck down such random stops when done without any "practice embodying neutral criteria," and when done as part of normal policing. See also Delaware v. Prouse (1979). What is unknown is whether they might be permissible, under the Court's "special needs" cases, when there are some neutral criteria, or when the place is a special location, such as a bus terminal or the environs of some location where security is especially important. There's enough uncertainty in the "special needs" caselaw [which includes cases such as the drunk driving checkpoints] that it's hard to be sure what the result would be there.)

Judge Guido Calabresi was appointed by a President who was eventually involved in a scandal that nearly led to the President's removal from office by the Senate. I am not suggesting for a moment that this person is John Mitchell, or is a felon who helped obstruct justice. I want to be clear on that, but it is a situation which is extremely unusual."

Sounds like such a hypothetical statement, if said seriously, would be logically senseless, and an unjustified attempt to smear Judge Calabresi? You bet. And yet I find it hard to distinguish this from what Judge Calabresi seemingly said at a conference of the liberal American Constitution Society (thanks to How Appealing for the pointer):

A prominent federal judge has told a conference of liberal lawyers that President Bush's rise to power was similar to the accession of dictators such as Mussolini and Hitler.

"In a way that occurred before but is rare in the United States . . . somebody came to power as a result of the illegitimate acts of a legitimate institution that had the right to put somebody in power. That is what the Supreme Court did in Bush versus Gore. It put somebody in power," said Guido Calabresi, a judge on the 2nd Circuit Court of Appeals, which sits in Manhattan.

"The reason I emphasize that is because that is exactly what happened when Mussolini was put in by the king of Italy," Judge Calabresi continued, as the allusion drew audible gasps from some in the luncheon crowd Saturday at the annual convention of the American Constitution Society.

"The king of Italy had the right to put Mussolini in, though he had not won an election, and make him prime minister. That is what happened when Hindenburg put Hitler in. I am not suggesting for a moment that Bush is Hitler. I want to be clear on that, but it is a situation which is extremely unusual," the judge said.

Judge Calabresi, a former dean of Yale Law School, said Mr. Bush has asserted the full prerogatives of his office, despite his lack of a compelling electoral mandate from the public.

"When somebody has come in that way, they sometimes have tried not to exercise much power. In this case, like Mussolini, he has exercised extraordinary power. He has exercised power, claimed power for himself; that has not occurred since Franklin Roosevelt who, after all, was elected big and who did some of the same things with respect to assertions of power in times of crisis that this president is doing," he said. . . .

It seems to me rather odd to compare someone to Hitler or Mussolini based on how they were put into power. The loathing attached to the names Hitler and Mussolini, after all, has nothing to do with the means by which they were installed into office. (It might have a little to do in both cases with the thuggery practiced by their followers that helped them get installed into office — but on that score they are hardly comparable with George W. Bush.)

To analogize someone to Hitler and Mussolini on this score is rather like making the hypothetical statement that I quoted at the start of the post. The premises of the analogy may be literally true, but the analogy is so irrelevant that it seems more effective as a smear than as a logical argument.

But beyond this, I'm not even sure that Judge Calabresi's analogy (as opposed to the one in the hypothetical statement) would be literally true. The German President was supposed to select a Chancellor, and the Italian King was supposed to select a Prime Minister, without regard to whether they had won election. Hitler had lost the Presidential election to Hindenburg, but Hitler's Nazi Party had won a plurality of the seats in the Reichstag, so there was nothing procedurally or legally "illegitimate" about Hindenburg's selecting Hitler. In parliamentary systems, the head of state is often called on to make decisions like that. (Churchill, for instance, was appointed Prime Minister without even any intervening popular election; nothing illegitimate about that, either.)

Mussolini's appointment was more closely tied to the military threat that he posed to the government. But even so, I don't think the King's decision to appoint Mussolini prime minister was procedurally or legally illegitimate from the King's perspective (it was illegitimate for Mussolini to act as he did, but Bush surely didn't use paramilitary groups to win Bush v. Gore).

Now perhaps I'm mistaken on this; if so, I'd be glad if people corrected me on it. (And I should stress that Judge Calabresi, who was born in Mussolini-era Italy, doubtless knows much more than I do about Italian history.) But if I'm right, then the supposed problem with Bush — that he was put into place by an illegitimate Supreme Court decision — doesn't even apply to Hitler and Mussolini.

Hitler's and Mussolini's faults did not include Bush's supposed fault. Bush's faults do not include Hitler's and Mussolini's faults. The supposed analogy that Judge Calabresi is making thus seems to have no basis at all. (Note, incidentally, that Judge Calabresi explicitly stressed that he wasn't criticizing President Bush's actions in office: "I'm a judge and so I'm not allowed to talk politics. So I'm not going to talk about some of the issues that were mentioned or what some have said is the extraordinary record of incompetence of this administration.")

So what possible legitimate role does the analogy to Hitler and Mussolini have here?

UPDATE: See also Instapundit's take and Andrew Sullivan's.

at least if they had reasonable suspicion to stop him. That's what I infer from SCOTUSBlog's report that the Supreme Court affirmed the Nevada Supreme Court's decision in the Hiibel case. Will read it as soon as it's available, and blog more about it.

UPDATE: Looks like the 5 conservative / 4 liberal split; Justice Kennedy, joined by Chief Justice Rehnquist and Justices O'Connor, Scalia, and Thomas is writing for the majority.

FURTHER UPDATE: Justice Stevens dissents solely on Fifth Amendment privilege against self-incrimination grounds, with an interesting argument that I hope to blog about shortly.

Justice Breyer, joined by Justices Souter and Ginsburg, dissent on Fourth Amendment grounds, though generally appealing to one precedent — dictum (which is to say a statement that wasn't necessary to the past opinion's holding), albeit considered dictum, in a past decision — rather than Fourth Amendment text, policy, or broader precedent-based rules. Breyer's opinion also argues that the majority's Fifth Amendment holding may prove unadministrable, but doesn't make any broader defenses of the right not to identify oneself.

That's rather odd, since it seems to me that such a broader defense would have made the opinion considerably more rhetorically effective, to the public, to state courts interpreting state search and seizure provisions, and to future Justices who might be considering whether to adhere to the majority's position, or even to extend it. But perhaps the dissenting Justices thought their time was better spent elsewhere. (It's also possible that they didn't have firm views on the Fourth Amendment first principles involved here, and really were relying solely on the precedent, but given that the precedent is so weak — the dissent acknowledges that it was dictum, and even a judge who thinks precedent should nearly always be adhered to wouldn't feel actually bound by such dictum — I assume that the dissenters really did differ with the majority on the principle as well as the precedent.)