Via the NYT: Roberts Court May Be Defined in Second Term

Chances are high that the new term, which begins on Monday, will be different. The cases that the court has agreed to decide — 38 so far — offer few off-ramps, requiring instead that the justices proceed to rulings that will define the new court in both substance and style.

Of the issues the will be before the Court this term include: partial birth abortion, the issue of race and school admission and the tobacco company liability.

Nope, no possible fireworks there.

Indeed, the piece notes that the question of punitive damages in general could receive a serious review by the Court:

Of all the areas of Supreme Court doctrine most likely to be affected by the court’s change in membership, punitive damages ranks high on the list. It is also something of a wild card, because the question of whether the constitutional guarantee of due process places any substantive limits on the award of punitive damages by state courts has divided the court in a way that follows no ideological pattern, and the inclinations of the new justices are unknown.

It should all be quite interesting.

The AP notes that it is Hard to Predict 6th Circuit’s NSA Ruling. To quote Chris Berman: “that’s why they play the game.”

At any rate, the piece mostly points out the obvious fact that we really don’t know how the court will rule.

Aside from that, there is this information on the court’s composition:

Bush has appointed six judges to the Cincinnati-based 6th Circuit, including two Michigan judges last summer that gave Republican appointees an 8-6 majority. The chief judge was appointed by Ronald Reagan.

The three-judge panels that hear appeals sometimes include a district court judge or a senior judge who is not a full-time member of the court. The full court could hear the case if a panel’s decision is appealed.

“There’s a whole range of judges in terms of experience, age and background,” said John Pirich, a Lansing, Mich., attorney who has argued cases here over three decades. “I really can’t quantify any of their rulings based upon who appointed them or what year they’ve been appointed.”

Via the NYT (Experts Fault Reasoning in Surveillance Decision - New York Times):

Even legal experts who agreed with a federal judge’s conclusion on Thursday that a National Security Agency surveillance program is unlawful were distancing themselves from the decision’s reasoning and rhetoric yesterday.

They said the opinion overlooked important precedents, failed to engage the government’s major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions.

Discomfort with the quality of the decision is almost universal, said Howard J. Bashman, a Pennsylvania lawyer whose Web log provides comprehensive and nonpartisan reports on legal developments.

The piece is full of quotes from legal scholars and commentators of various ideological stripes who believe the wiretap program to be illegal, but nonethelss find the ruling itself to be worthy of scorn.

For example:

“It’s hard to exaggerate how bad it is,” said John R. Schmidt, a Justice Department official in the Clinton administration who says the program is legal. He pointed to Judge Taylor’s failure to cite what he called several pertinent decisions, including one from the Foreign Intelligence Surveillance Court of Review in 2024 that said it took for granted that Congress “could not encroach on the president’s constitutional power” to conduct warrantless surveillance to obtain foreign intelligence.

The opinion also failed to note Hamdan:

The decision also failed to cite a Supreme Court decision in June helpful to the plaintiffs, a group of journalists, scholars, lawyers and nonprofit organizations. The decision, Hamdan v. Rumsfeld, struck down the administration’s plans to try prisoners at Guantánamo Bay, Cuba, as war criminals. It was widely interpreted as a rebuke to the administration’s expansive conception of executive power.

“After Hamdan,” Professor Sunstein said, “this program is not easy to defend.”

What effect the poor quality of the opinion will have on appeal, however, is quite unclear.

Still, it is unfortunate that such a major and important issue was so thoroughly botched by the Judge in this case.

In looking at the actual ruling in the NSA case by Judge Taylor (PDF here), I think that perhaps the WaPo editorial writers are over-reacting to a few cherry-picked lines from the opinion:

THE NATION would benefit from a serious, scholarly and hard-hitting judicial examination of the National Security Agency’s program of warrantless surveillance. The program exists on ever-more uncertain legal ground; it is at least in considerable tension with federal law and the Bill of Rights. Careful judicial scrutiny could serve both to hold the administration accountable and to provide firmer legal footing for such surveillance as may be necessary for national security.

Unfortunately, the decision yesterday by a federal district court in Detroit, striking down the NSA’s program, is neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting. The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work — that is, as a guide to what the law requires and how it either restrains or permits the NSA’s program — her opinion will not be helpful.

Most of the document is fairly straight-forward legalese, with a few more dramatic lines towards the end.

She certainly was direct in saying that the program violated, among other things, separation of powers doctrine, the First and Fourth Amendments and the FISA law (42). She specifically and clearly ruled that:

The president, undisputedly, has violated the provisions of FISA for a five-year period (36).

The First Amendment argument is weak, it seems to me on initial consideration.

I will say that given that seriousness of this issue, it is unfortunate that the opinion is written in such a way as to generate this much discussion about style and such, rather than about the very serious legal issues at hand. In that regard, I think that WaPo is correct.

Of course, I don’t read these things all that often, so it may be that that piece is more rhetorical than it appears. Eugene Volokh, who reads these things for a living, wasn’t especially impressed. He also highlights the inflammatory language:

A seemingly angry, almost partisan-sounding opinion (”[The orders] violate the Separation of Powers ordained by the very Constitution of which this President is a creature,” emphasis added, thanks to a caller for pointing this out) is unlikely to sway the other judges — especially when the opinion is rich in generalities, platitudes (”There are no hereditary Kings in America and no powers not created by the Constitution”), and “obviously”’s, and poor in detailed discussion of some of the government’s strongest arguments.

The “this President” line strikes me as gratuitous, but the “hereditary Kings” line, in context, did not strike me as all that partisan or inflammatory, as the paragraph in question (on page 40) simply notes that inherent powers derive from the Constitution, not the person or office of the President.

If anything, Volokh makes a valid point about the persuasiveness of a ruling on higher courts and the style in which the ruling is delivered.

Some other reactions:

• The NYT editorial board had not trouble with the rhetoric, and indeed quoted the “hereditary Kings” line.

• Glenn Greenwald takes the WaPo editorialists to task.
• Patterico takes Judge Taylor to task and calls the opinion “It is one of the most embarrassing pieces of garbage I have ever read.” (He must not read much written by undergraduates…).
• Captain Ed isn’t impressed.
• Scott Lemieux, who agrees with the outcome of the case, also agrees that the opinion is shoddy.
  

Via the AP: Judge nixes warrantless surveillance

A federal judge ruled Thursday that the government’s warrantless wiretapping program is unconstitutional and ordered an immediate halt to it.

This has always seemed likely the case to me–while there is no doubt that electronic surveillance with warrants or other adequate oversight are a necessary part of anti-terrorism policy, the notion that the government can listen into whatever it wants, whenever it wants because of some overly broad reading of Article II has struck me as problematic from the very beginning.

Of course, this story is far from over.

It’s always dicey to predict what appellate courts will do, but Rick Hasen argues that the U.S. Supreme Court is not likely to be persuaded by Tom Delay’s attempts to get off the ballot in the good old Texas 22nd:

But I would rate the chances of a further appeal being successful as very small. The reasoning of the 5th Circuit opinion is solid (the meat of the ruling, on page 20 of the pdf reads: “The intersection of § 145.003, which requires that proof of ineligibility be conclusive, and the Qualifications Clause, which requires inhabitancy only ‘when elected,’ presents an extraordinary burden to declaring a candidate ineligible on residency grounds prior to the election. This is because it is almost always possible for a person to change their residency: to move to the state in question before the election, thereby satisfying the Qualifications Clause.”).

Apparently, Delay’s lawyers are bypassing en banc review by the 5th Circuit and going straight for the gold (see Lyle Denniston here.)

Aside from the Qualifications Clause issue - about which the 5th Circuit holding seems reasonable enough to me - a contrary ruling would reward attempts by Delay and his party to game the primary system.

Via the AFP: US judge refuses to toss out domestic spying suit against AT and T

A federal judge denied a demand by US officials that a domestic spying lawsuit against telecom giant AT and T be thrown out in the interest of national security.

Wrote US District Court Justice Vaughn Walker is his rulling:

“To defer to a blanket assertion of secrecy would be to abdicate that duty, particularly because the very subject matter of this litigation has been so publicly aired.”

and

Walker said during hearings and repeated in his ruling that the state’s secret privilege “is not unlimited.”

Indeed.

CNN si reporting:

Ex-CIA operative Valerie Plame sues Vice President Cheney, his former aide, Scooter Libby, and presidential adviser Karl Rove.

No details at the moment.

(It’s the story that will not die)

So ruled a federal judge today, via CNN: Judge rules Capitol Hill raid was legal

Chief U.S. District Judge Thomas F. Hogan said members of Congress are not above the law. He rejected requests from lawmakers and Democratic Rep. William Jefferson to return material seized by the FBI in a May 20-21 search of Jefferson’s office.

In a 28-page opinion, Hogan dismissed arguments that the first-ever raid on a congressman’s office violated the Constitution’s protections against intimidation of elected officials.

Such has been my position all along: the nature of the evidence in this case, along with the ignored subpoena made it clear to me that the raid presented no constitutional problems:

Jefferson’s theory of legislative privilege “would have the effect of converting every congressional office into a taxpayer-subsidized sanctuary for crime,” the judge said.

Yup.

Of course, since this is the judge who signed off on the search warrant, his ruling is hardly a surprise. No doubt, there will be an appeal. I think Jefferson’s chances of winning such an appeal are pretty slim, however.

Via the AP: Court Rules Against Sanitizing Films

Sanitizing movies on DVD or VHS tape violates federal copyright laws, and several companies that scrub films must turn over their inventory to Hollywood studios, an appeals judge ruled.

I don’t know the law, so couldn’t say what the appropriate ruling should have been.

However, one question that comes to mind in the overall context of this case is why the movie studios themselves don’t sell their own edited versions of the films in question? It would open up a whole new market, it would seem to me.

And let’s face facts, most films (although granted, not all) would hardly be any different if a couple of f-bombs were removed or if they contained less T&A.

Although, as James Joyner notes, some films would be far shorter.