Published in Courts
Courts
Kelover
Professor Bainbridge alerts us to the latest development in the Kelo case. Pfizer is abandoning the property that the City of New London, CT took from Suzette Kelo and others and gave it to develop. Bainbriadge provides excellent analysis, including a surprise appearance by Russell Kirk. Liberal jurisprudence in action.
Presidency
Franck Stones Obama Pot Policy
Matt Franck takes a whack not only at Obama's decriminalization policy but at some conservative defenders of it who see a respect for federalism:
By announcing the non-prosecution of marijuana cases only in those 14 states that legalize some use of the drug for medical purposes, the administration has effectively proclaimed that federal law means one thing in those 14 states, and something else in the other 36. That could readily give rise to equal protection claims in the 36 states where the federal government still considers itself free to prosecute.
Moreover: "Worse, by conditioning the prospect of prosecution on the presence or absence of state laws that contradict a nationwide federal prohibition, the Justice Department has effectively subjected the validity of federal law to the will of state legislators." As a prelude to relaxing drug prosecution generally, "This way evinces Professor Obama's usual respect for the Constitution: he rolls his own."
Courts
Second Amendment
Courts
A Consistent Ethic of Judicial Restraint?
Courts
Will a Friend of Justice Clarence Thomas Join the Court?
Other facts about her: She is an army brat, attended Cornell and Emory law, with an LL.M from UVA, appointed by Zell Miller, and is married to a former Deputy Mayor of NY, under Ed Koch.
For pros and cons on other possibilities, note this Jan Crawford Greenburg co-authored piece. From all of this, Gov. Granholm looks more likely, at least on paper. Or is there no such thing as too many Chicagoans?
Courts
Justice Scalia at the National Catholic Prayer Breakfast
But denigrating, even implicitly, Jeffersonfs highest achievements (especially by contrast with a Saint) would further undermine Catholic self-understanding as well as patriotism. Preeminent among those achievements was the Declaration of Independence, with its radical statement of human equality, an assessment of the human condition that transformed the relationship of man to his government and the understanding of the relationship between man and the cosmos. Catholics, as well as those of other faiths and religious skeptics and scoffers, need the natural theology of the Declaration to ground our political and social conduct. They need the founding documentfs reason or natural law to establish their political principles. Philosophic reason paves the way for theology.
Justice Scaliafs remarks are not available, but Archbishop Burkefs powerful keynote address is here. Go, Notre Dame was not a leading theme.
Courts
Good Riddance and Bring It On!
Courts
An Obama Judicial Nominee
Courts
Public Opinion and the Courts
Courts
How to Argue About the Supreme Court
Generally, Republicans and conservative activists do a poor job of advocating their sensible and constitutionally necessary position. Matt Franck does outline a coherent strategy designed to change public opinion.
Unfortunately, those on the right tend to argue like lawyers, while Obama had (probably justified) contempt for his law school education (see his autobiography)--hence his emphasis on "empathy" as a judicial credential, which has attracted the ire of conservatives. If the right took to heart the Constitution's basis in the Declaration of Independence, they would sing a different song and interrupt the leftist appeal to the passions.
The Supreme Court is too important to be left to the lawyers--something Bush probably realized in his unfortunate initial pick of Harriet Miers. But he didn't have the skill (or the proper weapon) to make his point. The language of "judicial restraint" has no political cache and in fact is a secondary point. We want jurists who are zealous in their defense of the Constitution, while realizing the moderation essential to their office.
Courts
Federalism and firearms
Montana's staunchly pro-Second Amendment Governor, Democrat Brian Schweitzer, has signed Montana HB 246, the Montana Firearms Freedom Act. The bill declares that a firearm which is manufactured in Montana, and never leaves the State of Montana, "is not subject to federal law or federal regulation, including registration, under the authority of congress to regulate interstate commerce. It is declared by the legislature that those items have not traveled in interstate commerce."Presumably Wickard v. Filburn, or something like it, will be made to apply. Our courts don't like it when elected officials get uppity, and try to challenge their right to be the sole and final arbiters of the meaning of the constitution. Even so, it is interesting to see the people, acting through their representatives, questioning what the limits of federal jurisdiction are.
Courts
Constitutional Amendment?
Courts
Strippers and the Rule of Law
The whole tawdry tale is one of litigation run amok, which I have previously discussed here and the ever-insightful Professor Rotunda had discussed more recently here. Recapping the case briefly, in an attempt to gain more than the millions in cash and gifts that she had received during his life, Anna Nicole challenged her billionaire husband's estate plan, claiming that he had made a verbal promise of half of his fortune. The jury in Texas didn't buy this story, so she shopped for a more receptive court in California, and she found one in a federal bankruptcy court. The Ninth Circuit dismissed the millions awarded by the court based upon a federal jurisdictional rule, but the Supreme Court in 2006 reversed, saying that the federal court could consider the merits of the case. Contrary to Stern's failed petition, which suggests that he is now entitled to the judgment, his case looks grim. For when the Ninth Circuit looks at the merits, they will be obliged to apply Texas law and to respect the final decision of the Texas probate court. That court was crystal clear:
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED by the Court that J. HOWARD MARSHALL II did not intend to give and did not give to VICKIE LYNN MARSHALL, A/K/A ANNA NICOLE SMITH, a gift or bequest from the Estate of J. HOWARD MARSHALL II or from the J. Howard Marshall, II, Living Trust either prior to or upon his death.And yet, despite this clear finding, finality is not had. All the original players in the sad drama are now dead, but the litigation continues. The law treats probate court judgments as determinative of these questions for a reason: to avoid the protracted litigation and gamesmanship that have been the hallmark of this case.
Cross Posted on The Foundry.
Courts



