While the Supreme Court’s per curiam opinion today deals with legal matters apart from SSM, it is a potentially ominous development for the pro-SSM litigants. The majority here — split along familiar ideological lines, with Justice Kennedy joining (and Orin suggests, writing for) the majority — paints a picture of a district judge and to some extent […]
Archive | 2010
More Google Auto-Complete Fun
This time with “How do I get my [girlfriend/boyfriend/wife/husband] to ….” Click here for the results. Thanks to GeekPress for the pointer.
Hollingsworth v. Perry, Bush v. Gore, and Manipulating Procedural Rules in High-Profile Litigation Impacting the Political Process
Today’s 5-4 decision staying Judge Walker’s order to allow the broadcast of the California same-sex marriage case reminds me of a case that will be extremely familiar to the respondent’s lawyers, Ted Olson and David Boies. I think it reflects the same basic idea, albeit in a much more persuasive doctrinal context, that was motivating […]
Why Does Transmitting a Trial to Several Other Courthouses Throughout the Country Materially Increase the Risk of Witness Harassment?
As I understand the procedural posture of the stay application in the Prop. 8 transmission case, the only thing the Supreme Court was actually considering was whether the trial may be transmitted live to five other federal courthouses throughout the country. The question whether the trial may be distributed to the public via the Internet […]
Much Less in This Statistic Than Meets the Eye
“By January 8, 2010, the Court had received 138,574 comments, all but 32 of which favored transmitting the proceedings,” writes the dissent in the Prop. 8 broadcasting case. Nor do I think that the dissent’s use of that statement later in the opinion is that helpful: “Then, on December 31, the Court revised its public […]
Impromptu Supreme Court Opinion in Gay Marriage Case
The Supreme Court, nearly an hour after its 4 pm deadline passed, just handed down a 17-page per curiam opinion enjoining broadcast of the gay marriage trial going on in the Northern District of California pending resolution of an anticipated cert petition or petition for mandamus. Justice Breyer, joined by Justices Stevens, Ginsburg, and Sotomayor, […]
Supreme Court Opinion Staying Video Transmission of Prop. 8 Trial
The opinion was just released today, and is here. There’s also a dissenting opinion, written by Justice Breyer and joined by Justices Stevens, Ginsburg, and Sotomayor. UPDATE: The Court’s reasoning focuses on the late change in the district court’s rules to permit the live transmission of the trial; the Court concludes that this change likely […]
Third Circuit Rejects Constitutional Challenge to Revocation of Egyptian-Born Muslim Physicist’s Security Clearance
The case is El-Ganayni v. U.S. Department of Energy. El-Ganayni (a U.S. citizen) alleges that his security clearance was unconstitutionally denied because of his religion and because of his criticisms of the Iraq war and of U.S. foreign policy. The Third Circuit concludes that civilian courts may not review the merits of security clearance decisions, […]
Police in German State Checking ID’s of Everyone Entering or Leaving a Mosque?
So reports the Global Post: In Lower Saxony, a state in northwestern Germany, Muslim worshippers heading to Friday services routinely arrive to find the street in front of the mosque cordoned off and armed police at the entrance. Those entering or leaving the mosque must show their identification papers. Sometimes the police search bags, ask […]
Corrections in Online Law Review Supplements
When an article in an online companion to a law review — or, for that matter, an entirely online law review — contains an error, how should the correction be noted? I’m inclined to say that it should at least be marked in the body of the text, right where the error is. That way, […]
Today’s opinion in NRG Power Marketing
Today’s 8-1 opinion in NRG Power Marketing appears to reflect a fairly market-friendly view of the world. The Federal Power Act, 16 USC §§ 791a et seq., requires that rates for the sale of electricity in interstate commerce be “just and reasonable.” The Court held in United Gas Pipe Line Co. v. Mobile Gas Service […]
Goodbye
I’m signing off from the Volokh Conspiracy so that I will have time to pursue other projects. Thanks to Eugene for inviting me to blog with him, to the rest of the gang for putting up with me, and to readers for their frequently interesting and only occasionally uncharitable and very rarely egregious and defamatory comments. […]
No Citizens United this week.
The Court apparently released just one case today, an 8-1 reversal in NRG Power Marketing v. Maine Public Utilities Commission, No. 08-674. Still no Citizens United opinion. The further delay reinforces my impression that the decision will be a “dog’s breakfast” of separate opinions. As for timing, it seems likely the Court will release an […]
Specter to Support Johnsen for OLC
Facing criticism from a primary challenger, Senator Arlen Specter (D-PA) announced he is now willing to support confirmation of Dawn Johnsen to the Justice Department Office of Legal Counsel. It is still unclear whether her nomination has 60 votes, however, as some other moderate Democrats have been lukewarm about her nomination. As I’ve written before, […]
Constitutional Interpretation vs Construction
Last week at at Federalist Society law professors meeting in New Orleans, I debated my friend San Diego law prof Mike Rappaport of The Right Coast on whether the distinction now being made between constitutional interpretation and constitutional construction was helpful or hurtful to originalism. I argued for the importance of the distinction and maintained […]