I just read the Address for the first time -- too bad that it took me so long -- and thought the closing paragraph was quite moving:

I am loath to close. We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.

-- in his capacity as head of the Judicial Conduct and Disability Act Study Committee -- to complain about Judge Calabresi's remarks. Here's the letter. Seems like overkill to me, especially given the Judge's apology, but I thought I'd pass along the Congressmen's opposite view.

Michael Moore says the Saudis. Ralph Nader has a different view; I've quoted it here, but reader Duncan Frissell points to this even more explicit reference:

Independent presidential candidate Ralph Nader yesterday courted the Islamic vote by accusing Republicans and Democrats of ignoring the interests of Muslim Americans and describing the Congress and White House as "puppets of Israel." . . .

"The Israeli puppeteer travels to Washington and meets with the puppet in White House. He then goes down Pennsylvania Avenue and meets with the puppets in Congress," said Mr. Nader. The Israeli leader then "brings back millions of dollars" in aid to Israel, he said.

So which of these reliable worthies is right? Or could it be both, perhaps with the Queen of England (Lyndon LaRouche's bete noire) thrown in for good measure?

A TV station's Web site reports:

[An ACLU] lawsuit filed Tuesday challenges a new state law that effectively bans nude summer camps for teenagers, saying it violates the constitutional right to privacy. . . .

The law was passed in March in response to a weeklong residential camp for 11- to 18-year-olds last June at White Tail. . . .

"Legislators overreacted and in the process they substantially interfered with the right of families to make lifestyle choices," Virginia ACLU executive director Kent Willis said. "Using the overall logic of this law, legislators are now free to prevent children from swimming, playing baseball or riding a bus." . . .

Attorney General Jerry W. Kilgore said last year that such camps could attract pedophiles and child pornographers. . . .

I'm generally for giving parents lots of flexibility in how to raise their children. But even if this law is unwise (and I think the Attorney General's argument is not implausible, though I think nonconsensual nude photos via hidden cameras are a more likely risk than true child porn, which requires photographing lewd nudity, not just nudity as such), I really doubt that the Constitution protects such a right. And the fact that it's talked about as a matter of "privacy" just shows what a malleable and ultimately unhelpful word "privacy" has come to be.

Clayton Cramer has more on this, though I don't entirely agree with his analysis.

UPDATE: Curmudgeonly Clerk has some more specific legal points related to all this.

Nicholas Kristof (N.Y. Times) puts it well (thanks to Dan Gifford for the pointer):

In the 1990's, nothing made conservatives look more petty and simple-minded than their demonization of Bill and Hillary Clinton, who were even accused of spending their spare time killing Vince Foster and others. Mr. Clinton, in other words, left the right wing addled. Now Mr. Bush is doing the same to the left. For example, Mr. Moore hints that the real reason Mr. Bush invaded Afghanistan was to give his cronies a chance to profit by building an oil pipeline there.

"I'm just raising what I think is a legitimate question," Mr. Moore told me, a touch defensively, adding, "I'm just posing a question."

Right. And right-wing nuts were "just posing a question" about whether Mr. Clinton was a serial killer.

I'm against the "liar" label for two reasons. First, it further polarizes the political cesspool, and this polarization is making America increasingly difficult to govern. Second, insults and rage impede understanding. . . .

The judge this time is Paul Cassell, one of the leading conservative criminal procedure professors who was appointed to federal district court a couple of years ago. Prof. Douglas Berman (Sentencing Law and Policy reports):

I previously noted that law professors like to get the first word on important cases, and apparently that maxim holds even when they become judges. U.S. District Judge Paul Cassell of the District of Utah, who did interesting and provocative work as a law professor before he started doing interesting and provocative work as a judge, became (to my knowledge) the first federal judge to officially decalre the federal sentencing guidelines unconstitutional after Blakely. Here is a link to Judge Cassell's opinion in US v. Croxford, as well as a link to an article discussing Judge Cassell's ruling.

Update: I've just now had the chance to read Croxford and it is almost as breathtaking as Blakely itself. A must read for all Blakely followers today!

Go to Prof. Berman's post for the link to the opinion.

Who said that, just a few weeks ago?

(Click here for the answer.)

in The New Republic Online.

I've just updated my Excel spreadsheet of the Justices' votes in free speech cases to include 1994 to 2003 -- 10 years in which the Court's makeup has remained the same. Here are the results, with the Justices ranked from having the broadest aggregate view of free speech protection to the narrowest aggregate view.

For (1) a description of my method, (2) an explanation of why it makes some sense to look at Justices' overall votes on a wide range of free speech issues, and (3) an acknowledgment of the limitations of such aggregate results, see here.

As I stress in the article I cite to, I don't want to overstate the importance of such aggregate data. Still, many laypeople, journalists, and even scholars do make generalizations about the Justices (e.g., Thomas is a conservative and therefore has a narrow view of free speech, Breyer is a liberal and therefore has a broad view), and there is some value to such generalizations. If such generalizations are made, they should at least be accurate.

The Excel spreadsheet is still tentative; I'd love to hear any corrections that people might have. But before e-mailing me any proposed changes, please (1) make sure you've read my scoring method, (2) make sure you've recently read the case, and (3) tell me specifically which scores you think should be changed, and why.

Also, remember that I'm not counting whether I think the Justices reached the right result -- only whether they reached a more or less speech-protective result (and speech-protective in a pretty narrow sense, focusing on speech restrictions by the government and not on the effect on the overall level or quality of public speech).

The Ashcroft v. ACLU majority concludes that filters may well be a less speech-restrictive but equally effective alternative to the restrictions that the Child Online Protection Act imposes. That's why the Court effectively strikes down the Act. (The Court technically just upholds the preliminary injunction as not an abuse of the trial court's discretion, but it's clear that the Court agrees with the trial court on the merits; and though the Court remands for more factfinding, it's hard to see how more factfinding will really satisfy it.) Here's the Justices' argument:

A statute that "effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another ... is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve." When plaintiffs challenge a content-based speech restriction, the burden is on the Government to prove that the proposed alternatives will not be as effective as the challenged statute. . . . The purpose of the test is to ensure that speech is restricted no further than necessary to achieve the goal, for it is important to assure that legitimate speech is not chilled or punished. For that reason, the test does not begin with the status quo of existing regulations, then ask whether the challenged restriction has some additional ability to achieve Congress' legitimate interest. Any restriction on speech could be justified under that analysis. Instead, the court should ask whether the challenged regulation is the least restrictive means among available, effective alternatives. . . .

Blocking and filtering software is an alternative that is less restrictive than COPA, and, in addition, likely more effective as a means of restricting children's access to materials harmful to them. . . . First, a filter can prevent minors from seeing all pornography, not just pornography posted to the Web from America. . . . In addition, the District Court found that verification systems may be subject to evasion and circumvention, for example by minors who have their own credit cards. . . . Finally, filters also may be more effective because they can be applied to all forms of Internet communication, including e-mail, not just communications available via the World Wide Web. . . .

That's correct in one way: Indeed, given the choice between (1) having only COPA (which would require commercial providers of obscene-as-to-minors material to put it behind credit-card checks or other proxies for age verification) and (2) having only the alternative of filters, option 2 is the best solution.

But I don't think that's the right analysis. If the "purpose of the test is to ensure that speech is restricted no further than necessary to achieve the goal" ("to assure that legitimate speech is not chilled or punished" unnecessarily, which must be what the Court is referring to), then the comparison must be between (1) having both COPA and filters and (2) having only the alternative of filters. If COPA and filters do a better job of serving the compelling interest in shielding children from sexually explicit material (and the majority didn't dispute that the interest was compelling, as the Court held in the past) than just filters, then COPA is necessary to get that extra level of protection.

Justice Breyer's dissent, then, was more sound (especially, I think, as to his third point):

Thus, the relevant constitutional question is not the question the Court asks: Would it be less restrictive to do nothing? Of course it would be. Rather, the relevant question posits a comparison of (a) a status quo that includes filtering software with (b) a change in that status quo that adds to it an age-verification screen requirement. Given the existence of filtering software, does the problem Congress identified remain significant? Does the Act help to address it? These are questions about the relation of the Act to the compelling interest. Does the Act, compared to the status quo, significantly advance the ball? (An affirmative answer to these questions will not justify "[a]ny restriction on speech," as the Court claims, for a final answer in respect to constitutionality must take account of burdens and alternatives as well.)

The answers to these intermediate questions are clear: Filtering software, as presently available, does not solve the "child protection" problem. It suffers from four serious inadequacies that prompted Congress to pass legislation instead of relying on its voluntary use. First, its filtering is faulty, allowing some pornographic material to pass through without hindrance. . . .

Second, filtering software costs money. Not every family has the $40 or so necessary to install it. By way of contrast, age screening costs less. . . .

Third, filtering software depends upon parents willing to decide where their children will surf the Web and able to enforce that decision. As to millions of American families, that is not a reasonable possibility. More than 28 million school age children have both parents or their sole parent in the work force, at least 5 million children are left alone at home without supervision each week, and many of those children will spend afternoons and evenings with friends who may well have access to computers and more lenient parents.

Fourth, software blocking lacks precision, with the result that those who wish to use it to screen out pornography find that it blocks a great deal of material that is valuable. . . . .

Few parents, even the best parents, so closely supervise their children and the children's friends that they know whether the computers at the friends' houses have filtering software installed (and installed securely enough that the children's friends can't easily circumvent it). Their children will at some point have access to an unfiltered computer. COPA would thus provide those children an extra level of shielding beyond what filters alone could do.

Now this doesn't mean that Justice Breyer is right on the bottom line. Perhaps the extra protection that COPA provides is too small to be worth the free speech cost. Perhaps on balance filtering alone will be more effective than COPA plus filtering because COPA will lull so many parents into a false sense of security that they'll stop using filtering. Perhaps Justice Breyer underestimates the free speech cost (I think he does, and I hope to blog more about that later). Perhaps the Court has been wrong in assuming that shielding children from sexually explicit speech is a compelling interest, or at least compelling enough to justify burdens on the ability to communicate to adults.

But I think Justice Breyer is right in the particular criticism he makes of the majority. By its formulation of the test, the majority is trying to make it seem like the restriction is unnecessary, and in fact not even beneficial (when compared to the easy alternatives). That makes the majority opinion look like it's giving the public the best of both worlds: It's protecting speech without really sacrificing any shielding for children.

Yet there's little reason to think that this is indeed so. More likely, the majority opinion does indeed in some measure diminish the level of shielding that children are likely to have.

That may well be right — we might have to sacrifice some shielding of children from sexually themed material, in order to protect free speech. But Justice Breyer is right that the majority is wrong to suggest that no such sacrifice is taking place here.

For more on this sort of mistake, by the way, which the Court also committed in Reno v. ACLU (1997), see this article of mine.

The Court of Appeals of Minnesota confronted an interesting question yesterday: May a trial court require a defendant to hide a cross that he was wearing, so that the jury couldn't see it? (The Minnesota Constitution has been interpreted as mandating the government to accommodate religious practices in many contexts; but even under the U.S. Constitution's current Free Exercise Clause rule, such a requirement may pose problems because it singles out religious symbols for special restriction.) Here's the relevant excerpt from the opinion:

Before trial, the prosecutor requested that Tate put a cross that he was wearing around his neck inside his shirt so that it was not visible to the jury, arguing that Tate's cross would be "sending a religious connotation to the jury." The district court then told Tate "to tuck [the cross] inside [his] sweater." . . .

Minnesota courts apply a balancing test when analyzing whether a state regulation infringes a right under the Freedom of Conscience Clause of the Minnesota Constitution. Courts must ask if (a) the objector's belief is sincerely held; (b) the state regulation burdens the free exercise of religious beliefs; (c) the state interest in the regulation is compelling; and (d) the state regulation uses the least restrictive means.

Tate argues that it is clear that the district court's restriction violated his right to the free exercise of religion because (1) he "strongly objected to the suggestion that he hide his cross, an indication that his religious beliefs are sincere" and (2) the district court failed to conduct its own inquiry into the substance and sincerity of his beliefs. See Joseph v. State, 642 So. 2d 613, 615 (Fla. Dist. Ct. App. 1994) (holding that the Free Exercise Clause entitled defendant to wear sweatshirt and jeans with religious pictures and names when trial court conceded that defendant's clothing was based on his religious beliefs and there was no evidence to support trial court's decision to prohibit defendant from wearing the clothing); In re Palmer, 386 A.2d 1112, 1114 (R.I. 1978) (holding that trial court's refusal to allow defendant to appear in courtroom while wearing a prayer cap unjustifiably infringed on his right to the free exercise of religion because trial court did not attempt to determine the sincerity of defendant's beliefs or whether such beliefs precluded the removal of the prayer cap in court).

Tate further asserts that the state failed to articulate any compelling state interest in having Tate hide his cross, although the district court expressed concern that if Tate did not hide his cross, the jurors would see it because they were "captives of the system and would not have that same right to express their religious beliefs or the right to refuse to have other's religious beliefs expressed to them." Tate maintains that it is unclear what interest was promoted by the hiding of his cross and that, further, no interest in courtroom decorum could outweigh his right to wear his cross. . . .

The court of appeals concluded that "because the district court did not conduct an inquiry into the substance and sincerity of Tate's beliefs, the district court's order forbidding Tate from openly wearing his cross was error." Presumably this means that if the trial court did conduct such an inquiry, and Tate was found to be sincere in his beliefs, he was entitled to wear the cross. But it's conceivable that the court of appeals is leaving open the possibility that the defendant could still be restricted because of some compelling interest in shielding jurors from religious symbolism. In fact, the court of appeals later characterized the district court's actions as "arguably infring[ing]" Tate's religious freedom, so the "arguably" suggests the question may still be open.

But in any event, the court held (probably correctly), that any such error didn't make Tate's trial unfair, and thus doesn't justify giving him a new trial.

Reader Michele Kerr points out something that I missed, from the odd op-ed about abortion and Democrats (the one I mentioned here):

* Six out of 10 Americans call themselves conservatives. Only a quarter of them are having abortions.

* A little more than one-third of Americans call themselves liberals. More than four in 10 are having abortions.

* This means that liberals are having one third more abortions than conservatives.

More than four in 10 liberal Americans are having abortions? Even if one reads this as "have had" abortions, if women are roughly 50% of liberals (not exactly right, but close), that would mean that 80% of liberal women — and 50% of conservative women — have had abortions. Can that possibly be right?

I don't exactly follow the writer's statistics, but it seems pretty clear that there's at least one error somewhere in there. It might be, for instance, that the numbers refer to people who answered yes to "As far as you know, has anyone close to you had an abortion?" But "More than four in 10 know have had someone close to them have an abortion" would be very different than what the article says, which is "More than four in 10 are having abortions."

UPDATE: Glen Whitman (Agoraphilia) has more.

Justice Breyer (joined by Chief Justice Rehnquist and Justice O'Connor) dissented in today's Ashcroft v. ACLU. The Child Online Protection Act, he reasoned, was very narrow.

COPA doesn't limit itself to unprotected obscenity (defined roughly as speech that appeals to the "prurient interest," depicts sex in a "patently offensive" way, and lacks "serious value"). Rather, it requires that sites hide behind credit card checks (or similar screens that serve as proxies for age) any "harmful-to-minors" material, defined as speech that appeals to the "prurient interest" of minors, depicts sex in a way that's "patently offensive" when displayed to minors, and lacks "serious value" for minors.

But Justice Breyer argued that the distance between these two is very small. In practice, Justice Breyer argued, the law only restricts "legally obscene material, and very little more." In his view, "the addition of [the words 'of minors'] to a definition that would otherwise cover only obscenity expands the statute's scope only slightly."

I'm not sure Justice Breyer is right; the law is so vague that it's hard to tell. But if he is, then why is he complaining about the supposedly dire practical effects of striking down the law? (I understand complaining about purely theoretical questions, even if there's little practically riding on the issue, but much of Justice Breyer's argument seems to be focused on pragmatic considerations.)

After all, under Justice Breyer's understanding of COPA, the government could achieve its goals just as well simply by enforcing obscenity law. Maybe obscenity law is not a "less restrictive" alternative (it could be more restrictive), but it should work just fine. COPA hardly seems a necessary addition to the government's powers — which is part of the First Amendment test that he applies — if the government already has ample tools to fight the problem.

Justice Breyer actually alludes to the possibility of obscenity prosecutions by arguing that this decision may end up leading to more speech restriction, rather than less (some paragraph breaks added):

. . . [W]ill the majority's holding in practice mean greater or lesser protection for expression? I do not find the answer to this question obvious.

The Court's decision removes an important weapon from the prosecutorial arsenal. That weapon would have given the Government a choice — a choice other than "ban totally or do nothing at all." The Act tells the Government that, instead of prosecuting bans on obscenity to the maximum extent possible (as respondents have urged as yet another "alternative"), it can insist that those who make available material that is obscene or close to obscene keep that material under wraps, making it readily available to adults who wish to see it, while restricting access to children. By providing this third option — a "middle way" — the Act avoids the need for potentially speech-suppressing prosecutions.

That matters in a world where the obscene and the nonobscene do not come tied neatly into separate, easily distinguishable, packages. In that real world, this middle way might well have furthered First Amendment interests by tempering the prosecutorial instinct in borderline cases. At least, Congress might have so believed. And this likelihood, from a First Amendment perspective, might ultimately have proved more protective of the rights of viewers to retain access to expression than the all-or-nothing choice available to prosecutors in the wake of the majority's opinion. . . .

But under Justice Breyer's description of COPA's boundaries, the "middle way" still remains: The government can simply announce that it will start enforcing obscenity laws against all businesses that distribute obscenity in ways that are easily accessible to minors. Justice Breyer stresses that "harmful-to-minors" material is "legally obscene material, and very little more." So the government policy would be nearly exactly what it could do with COPA.

(It's possible, of course, that this might not be optimal for free speech, because once the government starts this narrow program of obscenity prosecutions, it will eventually start doing more. But that's far from clear.)

Of course, some prosecutors might object that this middle way is harder than with COPA. The whole point of COPA, they might argue, is to shield children even from a good deal of pornography that's protected as to adults, but inappropriate for children. But if they're right, then Justice Breyer's assurances about the narrow scope of COPA are mistaken.

So it seems to me that either Justice Breyer is right that COPA affects very little protected (i.e., nonobscene) speech — but then striking it down affects the government's power to shield children very little. Or he is right that it's a necessary tool for shielding children; but that would only be the case if COPA affects speech considerably more protected speech than he suggests.

I couldn't find a copy of the letter online, so I thought I'd keypunch it in. (It's been publicly released by the Second Circuit.) Here it is:

June 24, 2004

The Honorable John M. Walker, Chief Judge

United States Court of Appeals, Second Circuit

157 Church Street

New Haven, CT 06510

Dear John,

I write you as Chief Judge to express my profound regret for my comments at last weekend's American Constitution Society Conference. My remarks were extemporaneous and, in hindsight, reasonably could be -- and indeed have been -- understood to do something which I did not intend, that is, take a partisan position.

As you know, I strongly deplore the politicization of the judiciary and firmly believe that judges should not publicly support candidates or take political stands. Although what I was trying to do was make a rather complicated academic argument about the nature of reelections after highly contested original elections, that is not the way my words, understandably, have been taken. I can also see why this occurred, despite my statements at the time that what I was saying should not be construed in a partisan way. For that I am deeply sorry.

I will not take the time here to outline the non-partisan theoretical framework I was trying to develop. In retrospect, I fear that is properly the stuff only of an academic seminar. For, whatever I had in mind, what I actually said was too easily taken as partisan. That is something which judges should do their best to avoid, and there, I clearly failed.

Again, I am truly sorry and apologize profusely for the episode and most particularly for any embarrassment my remarks may have caused you, my colleagues, and the court.

You should feel free to share this letter with our colleagues.

Sincerely,

[signature]

For more on the controversy, see here, here, and here.

Pejmanesque has a very long post on the subject, but with lots of relevant quotes from the cases.

Another reminder that student Notes can influence people, from the recent federal district court decision that holds the federal Sentencing Guidelines unconstitutional (United States v. Green), the judge writes:

The conflict between the Guidelines and the mandate of Apprendi and Ring first came to this Court's attention when it encountered a February 2004 Note in the Harvard Law Review on the subject. The Court was at that point nearly ready to issue its sentencing opinion in two of these cases, and the sentencing hearings in all of them had occurred some time before that. The Court reexamined the relevant precedent, and it became increasingly clear that the Court could not "conscientiously and with due regard to duty and official oath decline the responsibility" to apply Apprendi and Ring in its sentencing analysis.

The Note is The Unconstitutionality of Determinate Sentencing in Light of the Supreme Court's "Elements" Jurisprudence, 117 Harv. L.Rev. 1236 (2004), by William J. Trach. Congratulations!

An odd column that reasons that because Democrats are more likely to have abortions, and Democrats' children would be more likely to grow up to vote Democrat, a liberal abortion policy is costing Democrats votes.

It's odd for a couple of reasons. First, consider the closing argument:

For advocates so fundamentally committed to changing the face of conservative America, liberals have been remarkably blind to the fact that every day the abortions they advocate dramatically decrease their power to do so. Imagine the number of followers that their abortion policies eliminate who, over the next several decades, would have emerged as the new liberal thinkers, voters, adherents, fund-raisers and workers for their cause. . . .

As liberals and Democrats fervently seek new voters and supporters through events, fund-raisers, direct mail and every other form of communication available, they achieve results minuscule in comparison to the loss of voters they suffer from their own abortion policies. It is a grim irony lost on them, for which they will pay dearly in elections to come.

It sounds like criticism of Democrats -- but why isn't it praise? Democrats are defending what they think (rightly or wrongly) is a fundamental human right, even at some cost to their political power. Sounds pretty noble to me. The opposite, which would be changing their views on what they used to think of as a human rights issue in order to get more voters in a couple of decades, would be pretty ignoble.

Second, I take it that the effects of not having an abortion are a bit more complex than just having one extra child, which as best I can tell is the author's model. If a woman wants two children, and has an unexpected child early in life, she might well have just one more child later.

Third, the effects of a Democrat's having an unwanted child might be one extra Democrat. Or perhaps the mother would end up being poorer, or less educated (if, for instance, having a child at age 18 leads her not to go to college). This may make it less likely that she'll vote -- as I understand it, poor people indeed tend to be less likely to vote. It may leave her with less time to volunteer as a "worker for [her] cause." It may give her less education to be a "new liberal thinker[]." And it may leave her with less money to contribute to candidates and to causes.

So the simple model that the article suggests seems pretty vastly oversimplified, and the numbers only add a false sense of accuracy. But in any event, I keep going back to the first point: Even if the article is right, it is describing a laudable blindness to political consequences (or perhaps deliberate ignoring of political consequences) -- not so much "grim[ly] iron[ic]," as a necessary and proper consequence of adherence to principle. And the only honorable thing that Democrats can do in response to the article is to resolutely ignore it.

SCOTUSBlog reports on how often pairs of Justices voted together. Here are the top 9 percentages (counting those times that the Justices agreed with each other entirely):

The big surprise to me: O'Connor and Breyer being so close.

Not a surprise at all: Scalia and Thomas, though they vote together often, are only #7 on this list.

The lowest percentage: Unsurprisingly, Stevens and Scalia, at 38%.

from SCOTUSBlog. Puzzle (not terribly telling, but I hope amusing): Of the circuits that have had five or more cases before the Court this Term, which circuit has the lowest reversal rate? Go here to see the answer; also check the overall reversal rate for all jurisdictions.

in today's Ashcroft v. ACLU decision, in which Justice Thomas provided the critical fifth vote for the majority, and Justice Scalia took a very different view in dissent.

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

One of the prongs of the Court's obscenity test is that the speech must "appeal to the prurient interest" in order to be punishable as obscenity. (This requirement is not sufficient -- two other prongs must be met -- but it is necessary.) The Child Online Protection Act likewise required that the speech be designed to "appeal to the prurient interest" "with respect to minors."

But what does "prurient" mean here? In Brockett v. Spokane Acardes (1985), the Supreme Court specifically rejected the argument that all material that "incites lasciviousness or lust" is prurient. Only material "whose predominate appeal is to 'a shameful or morbid interest in nudity, sex, or excretion'" can be seen as appealing to the prurient interest, the Court held. "Material that, taken as a whole, does no more than arouse, 'good, old fashioned, healthy' [I kid you not -EV] interest in sex" remains constitutionally protected.

Justice Breyer's dissent today in Ashcroft v. ACLU, though, seems to take a different view: "Insofar as material appeals to, or panders to, 'the prurient interest,'" he concludes, "it simply seeks a sexual response." Does this mean that Justice Breyer -- and Chief Justice Rehnquist and Justice O'Connor, who joined his opinion -- want to cut back on Brockett, even though then-Justice Rehnquist and Justice O'Connor joined Justice White's majority opinion in that case? Or is this just a slip that flows from the use of terms of art such as "prurient interest," which have a technical meaning that differs from what to most people is their intuitive meaning?

Note that Justice Breyer uses the "seeks a sexual response" definition of "appeals to the prurient interest" twice, as part of his core argument.

whose excellent Stepping into the Same River Twice: Rapidly Changing Facts and the Appellate Process, 78 Texas L. Rev. 269 (1999), was just cited by the Supreme Court majority opinion in Ashcroft v. ACLU.

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.