[Orin Kerr, November 15, 2005 at 6:32pm] Trackbacks
Harvard Law Review Supreme Court Issue:
The Harvard Law Review's Supreme Court issue is out and available online in .pdf format. Richard Posner wrote the Foreward, A Political Court, and Professors Vicki Jackson, Jeremy Waldron, and Ernie Young each contributed short pieces on the role of foreign and international law in constitutional law cases. The issue is dedicated to the late Chief Justice William H. Rehnquist, and includes tributes to him by several colleagues and several former clerks including John Roberts, Maureen Mahoney, and Ted Cruz. Finally, it wouldn't be the annual Supreme Court issue without the Term Statistics.
C&F (mail) (www):
Nice issue. But the new Term is already in session, and most of the stuff states section was already available at SCOTUSblog in one form or another. G&H and SCOTUSblog is hoarding less and less information, which is good for readers, but bad for slower-moving writers.

It might be a cruel thing to say, but I think the Harvard Law Review's Supreme Court stats page is dead. If the HLR editors want to compete with G&H and other information sources, they're going to have to start a blog; and to update the stats in real-time.
11.15.2005 8:32pm
Sam:
On the statistics, it interesting that, of every federal case the Court reversed via written opinion, one quarter are from the 9th Circuit. Is the circuit wrong that often, or does it just have that much bigger docket than most (or some combination of the two)?
11.15.2005 8:33pm
HLR Editor (mail):
While the entire issue is worth reading, I particularly recommend Judge Posner's foreword; it is genuinely interesting, and extremely well-written.
11.15.2005 9:36pm
Harry3Lime (mail):
Rehnquist was a bigot and only Republican hero-worship finds it becoming.

As for Posner, he's the law book Grisham; he talks too much and keeps saying the same thing.
11.15.2005 10:06pm
Justice Fuller:
Thanks for the deep and insightful comment, Harry3Lime.
11.15.2005 10:39pm
DelVerSiSogna:
I was surprised to see one of Rehnquist's law clerks openly praising him for basing his vote in Dickerson (a case about Miranda's continuing validity) entirely on his desire to be in the majority so he could write a narrower opinion than Justice Stevens would have. Not that such speculation is surprising -- just that the law clerk to a conservative Justice would praise him in that manner in that forum.
11.15.2005 11:34pm
WB:
Sounds like an Ed Lazarus thing. "Here's some juicy information, now pay attention to me."

I second HLREditor's comment on the foreword. It's very interesting.
11.16.2005 8:30am
frankcross (mail):
Posner is fly, fo' shizzle my nizzle
11.16.2005 10:44am
Hattio (mail):
Sam,
If I remember right, 9th Circuit has a larger docket than the four or five smallest combined...or something like that. Of course, that's from a speech by Lisa Murkowski, so take it with a grain of salt even if I am remembering correctly.
11.16.2005 11:59am
jgshapiro (mail):
It was particularly ironic to see a former Rehnquist clerk *praising* Rehnquist for switching his vote to control the assignment of an opinion so that he could keep it away from Stevens. That is something Burger was always criticized for and a practice in which other commentators have said Renquist never engaged.

The same clerk goes on to praise him for writing a logically flawed opinion so that he could come as close as possible to his desired result in Dickerson, given the other votes on the court. How is that different from what Brennan, et. al. are usually accused of?

That clerk claims Rehnquist did these things because he understood the difference in the role of Chief Justice. Are manipulation and ends-justify-the-means reasoning a fundamental part of that role?
11.16.2005 12:30pm
DelVerSiSogna:
Or in other words, what I just said.
11.16.2005 12:34pm
gross:
I am disgusted by Maureen Mahoney's shameless attempt to take what should be a focus on former Chief Justice Rehnquist and use it to focus on her accomplishments. She probably hoped this would be coming out as she was facing a confirmation hearing. She should be ashamed of herself.
11.16.2005 1:14pm
wt (mail) (www):
Gross:

I really don't think that's the necessary reading of Mahoney's piece. She uses herself as an example for only 1 short paragraph, and even shares the spotlight with Rehnquist's grandaughter therein.

Her purpose is to demonstrate that the Chief's view of women was emphatically discordant with the view of womens' groups who opposed his elevation to the Chiefship.

Her use of herself, as well as the Chief's grandaughter, seems to be a very reasonable tactic in that context.

Also, she WROTE the piece. So, like, using her space to laud other females--when she might be the best example of how he nurtured the success of females--doesn't really make sense, right?
11.16.2005 1:32pm
Plainsman (mail):
Glancing through the Foreword, I see that Posner (at p.55) characterizes the U.S. Supreme Court's decision in Harmelin v. Michigan as upholding "a life sentence for possessing a small quantity of cocaine."

But the defendant in Harmelin was caught with over a pound and a half of cocaine -- tens of thousands of doses. Moreover, the large quantity was material to the outcome: if the drug amount had been smaller, Harmelin would not have received a mandatory life sentence under state law.

This kind of corner-cutting does not invalidate the many thought-provoking aspects of Posner's writing, but it is a recurrent flaw.
11.16.2005 2:16pm
C&F (mail) (www):
Plainsman, Posner does it all the time. He's the lawyer's equivalent of the MSM. What he writes sound plausible, unless you really understand the area of law he's writing about. Then one spots errors galore. I generally assume such errors are unintentional. But given that the guy is a genius, and given that he admits that he reasons from conclusion to premise, a more plausible explanation (as well the lyrics to a popular Fleetwood Mac song) comes to mind.
11.16.2005 4:42pm
Drug Weight:
Plainsman,

While its true that 672 grams seems like a lot of cocaine (and the Court did characterize it that way), keep in mind that as a federal judge, the cocaine cases Posner sees probably feature drug quantities in the 5,000 - 150,000+ gram range. A defendant who, like Harmelin, had no prior convictions, would face about 5-6.5 years under the federal guidelines. If he had 5,000+ grams the sentence would go up to about 10-12.5 years, and even if he possessed over 150,000g of cocaine, he would still not receive a life sentence (only about 20-24years).

So, while 672g may seem like a lot out of context, I don't think its outrageous to characterize that amount as "small" relative to the life sentence.

Of course, to the degree we can have an honest debate about this, we are only illustrating Posner's central point...
11.16.2005 8:43pm
Plainsman (mail):
But there was no context provided.

Surely the readiest way to demarcate "small" and "non-small" amounts of drugs is commercial vs. individual quantities. Harmelin fell unambiguously on the commercial side. The case wasn't about drug users, it was about drug dealers.

If Posner had said "a moderate quantity of cocaine," then I'd have no problem, and a good deal of the force of the point he was making would have been preserved.

But, no. Stated cold like that, 672 grams is not "small." Such a characterization goes past advocacy to distortion. I can imagine the 7th Circuit, Posner's court, dropping a sarcastic footnote on a defense counsel who characterized Harmelin that way in a brief.
11.16.2005 9:11pm