Obtuse Observer

September 16, 2010

Free Speech, Justice Breyer and Burning Korans

Filed under: Free Speech,Justice Breyer,SCOTUS — Tags: , , — Obtuse Observer @ 8:09 am

Here’s an excerpt from Justice Stephen G. Breyer’s interview with George Stephanopoulos discussing Koran burning and the First Amendment

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Indeed. And you can say—with the Internet, you can say this. … Holmes said it doesn’t mean you can shout “fire” in a crowded theater. Well, what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is the being trampled to death? … It will be answered over time in a series of cases which force people to think carefully.

Breyer is referring the opinion of Justice Oliver Wendell Holmes in Schenck v United States 249 U.S. 47 (1919) where he said:

The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

This hypothetical proposed by Holmes and answered with the clear and present danger test.  That test is no longer good law.  I’m no free speech expert but as far as I know the current test is “incitement to imminent lawless action” found in Brandenburg v Ohio 395 U.S. 444, 447 (U.S. 1969).  So, Breyer used a hypo that relates to an abandoned standard of law.  Further, burning Korans is not advocacy for lawless action.  The lawless action would be a response to the lawful expression of free speech. 

Breyer seems to suggest that if what one says is sufficient to upset a listener (or viewer) then that speech may not be protected.  This should strike us all as a bit of inverted logic.  The first doesn’t exist to protect speech that is popular.  Recall that the Supreme Court held, in National Socialist Party of America v Village of Skokie 432 U.S. 43 (1977) that the Nazi’s could parade through the mostly Jewish community of Skokie Illinois.  If burning books is regarded as sufficient provocation of lawless action amongst those offended by the speech or act what then should we say about Nazi’s marching through a neighborhood of Jews where the issue was the burning of people and the extermination six million Jews?

Breyer is on the wrong side of the law, history and common decency.

For the record: I hate Illinois Nazi’s.

August 6, 2010

Prop 8 and Same Sex Marriage

I’ll be, as brief as I can, as this is a percolating thought rather than something well formulated but I was confused by the Prop 8 ruling in California. 

Prop 8 amended the constitution in California to define marriage as one man and one woman (scroll down to Cal Const Art I, § 7.5. for the language).  It is only since 2003 with Lawrence v Texas (the court held that private homosexual acts could not be criminalized) that anyone would assert a right to same sex marriage without being subject to that quizzical cocked eye look my cat gives me when he’s not sure if I’m gonna bounce him off the bed or not.

I’ve mentioned fundamental rights before and that legislation touching on fundamental rights is almost always subject to the strict scrutiny test.  Marriage is a fundamental right.
Ergo, any legislation effecting a fundamental right is presumed unconstitutional.  U.S. District Chief Judge Vaughn R. Walker required the defenders of a fundamental right to meet a burden of proof why their definition, which plainly states what thousands of years of human existence has understood, was, in his view, appropriate.  The onus is on the proponent of change not on the defender of the status quo.  It is my assertion that any legislation, or judicial rulings that alter the definition of one man and one woman violate the strict scrutiny test and as such are void.

Just a final word on the topic in general.  I support domestic partnership legislation.  Even further, if states, by the ballot box decide to expand the definition of marriage so be it; such is their right.  However, for one judge to strike 7,000,000 votes with a pen and a poor legal foundation is the stuff of judicial tyranny.  The concept of federalism, letting states decide for themselves what is best for themselves – especially on matters relating to the family – matters the federal government has traditionally held itself apart from, is far more important than expanding the definition of marriage by judicial fiat at the cost of adhering to long standing legal principles.

August 4, 2010

Use of Foreign Law in US Supreme Court Cases

Filed under: SCOTUS,Supreme Court — Obtuse Observer @ 11:48 am

A recent NYT editorial voiced approval for the use of foreign law in American courts.   

This is a silly notion for two glaring reasons.

1) The use of foreign law in US courts creates a breach in our sovereignty

2) There are a lot of countries out there.. some number over 190.  With that many coutries I’m fairly certain you can find case law that supports all manner of ridiculous ideas.

Please allow me to provide an example or two

Iran Rejects Brazil’s Asylum Offer For Woman Sentenced To Death By Stoning

Man Ordered to Marry Goat  That’s messed up even with a really pretty goat.

Saudi princess given asylum in UK over fears she faces execution for having illegitimate child with British lover

July 28, 2010

Tea Party the GOP and the Courts

Filed under: Constitution,Politics,SCOTUS — Tags: , , — Obtuse Observer @ 1:15 pm

I understand grassroots rage and even paranoia from the Tea Party movement but populism can be dangerous.  It is the mob.  As GFWill said in response to a comment that xyz was ”populism at its finest” in his aloof voice “populism at its finest is an oxymoron.”  Now I differ with Will on a great many things but his elitism sometimes hits the target squarely.  This is one of those times.

Having said that, the GOP needs the Tea Party people and the Tea Party people need the GOP.  Will they see through their differences to diminish a common foe (my enemy’s enemy is my friend) or will they permit Voltaire’s caution and let the perfect be the enemy of the good?  

I think it was Stalin who said, “Less good, but good enough.”  Politics is not about one’s ideals.  Its about the possible; pragmatism.  That’s why most of us cannot stomach it.  It requires too much compromise.  However, in a nation of 300,000,000 people there are lots of competing ideas.  Most of us will be disappointed.  We need to be willing to accept good enough and not sacrifice it on the altar of the perfect.  Our system works.  Slowly.  But it works.  

The problem on the left is their willingness to disregard the democratic system and seek vindication from the courts because the system is too slow, too unpredictable and all they need is one sympathetic judge to continue pursuing their version of a perfect society so they can disregard the votes of millions.  Why bet on chance when you can find a fighter willing to take a dive?  Now, in no way to I mean that the judges are bribed.  I mean that sympathetic judges are identifiable, sought out and reliable with regard to policy preferences and unwilling to disregard their personal preferences when they can help shape policy as they believe it should be… the antithesis of a democratic system.  That’s activism defined. They castigate the right for what they perceive as parallel acts disregarding our system.  But here’s the problem (other than the fact that they’re fucking wrong).  Back to pragmatism and we’ll even toss in actual constitutional duty… the complaints levied against GW that he was abusing civil liberties amount to, in most common terms, a complaint that he was too ambitious in his efforts to keep Americans from being killed by terrorists.  We have huge swaths of people who know so little of our vast and rich heritage.  The left seeks rule by expert testimony to judges.  They’re winning.  Slowly. 

We’re moving to government by the legislative and executive branches once they’ve received judicial approval.  If the voters cannot understand the risks inherent to democracy when they cede so much authority to non elected officials (on the basis of Marbury which rests on dubious footing… judges who often shed their duty of impartiality in pursuit of what may well be an honest belief in seeking out the greater benefit to society) then we have some real problems.  Thomas Jefferson, whom I am generally loathe to quote noted that the upshot of Marbury would be a despotism of an oligarchy.

full quote here 

To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps. Their maxim is boni judicis est ampliare jurisdictionem [good justice is broad jurisdiction], and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves. 

—Thomas Jefferson to William C. Jarvis, 1820. ME 15:277 

July 21, 2010

Gun Control

I recently commented on Mayor Daley’s contempt for the holding in McDonald v The City of Chicago The court found the Second Amendment  to be a fundamental right and by selective incoporation the protection is applicable against both state and federal governments.  

Second Amendment supporters have cause to cheer.  I’ve noted that Mayor Daley’s obdurate opinion and action regarding guns is a boon for gun owner’s rights.

Generally legislation touching on a fundamental right is evaluated by the strict scrutiny test.  This test holds that legislation effecting a fundamental right is presumptively unconstitutional unless it is narrowly tailored to serve a compelling or overriding governmental interest.  It is a very difficult burden to carry.

But now comes an article predicting how future litigation may play out.  Professor Eugene Volokh argues that the court may not apply the strict scrutiny test (for a variety of egghead reasons you may indulge yourself with here).  His arguments are logical, informed and detailed.  His command of the subject is indeed impressive. 

Here’s my problem.  I’m a believer in Occam’s Razor.  The basic concept is the more complicated the explanation the more likely it is flawed.  Fundamental rights are traditionally evaluated under strict scrutiny.  Professor Volokh’s eloquent arguments offer us a prediction that the court may twist itself into knots in order to produce the most favored result of the court.  This means Justice Kennedy is a potential weak vote who may be unwilling to apply the law in a manner well established.  Then again, maybe he will?  We may soon find out.


July 3, 2010

Daley Chicago Unimpressed by Supreme Court’s Ruling in McDonald

Filed under: Gun Control,Politics,SCOTUS,Supreme Court — Tags: , , , , — Obtuse Observer @ 6:18 am

Image: Chicago Mayor Richard DaleyThe Supreme Court recently ruled the Chicago gun ordinance unconstitutional.  

McDonald v City of Chicago affirmed the recent holding in Heller and found that the rule in Heller applies to state legislation as well as federal legislation.

The city of Chicago for its part thumbed its collective nose at the Supreme Court and promptly passed another gun ordinance by a vote of 45-0.

As noted in a recent AP article the new law places many onerous restrictions on ownership including:

— Limits the number of handguns residents can register to one per month and prohibit residents from having more than one handgun in operating order at any given time.

— Requires residents in homes with children to keep them in lock boxes or equipped with trigger locks.

— Requires prospective gun owners to take a four-hour class and one-hour training at a gun range. They would have to leave the city for training because Chicago prohibits new gun ranges and limits the use of existing ranges to police officers. Those restrictions were similar to those in an ordinance passed in Washington, D.C., after the high court struck down its ban two years ago.

— Prohibits people from owning a gun if they were convicted of a violent crime, domestic violence or two or more convictions for driving under the influence of alcohol or drugs. Residents convicted of a gun offense would have to register with the police department.

— Calls for the police department to maintain a registry of every handgun owner in the city, with the names and addresses to be made available to police officers, firefighters and other emergency responders.

Full Article Here                                     


Daley and crew are going to lose on this one too.  Not sure if they’re hoping the weight of the court shifts before this one gets all the way up (presuming it isn’t struck at first challenge) or if they are hoping the the Roberts court as currently constituted will continue to flesh out what exactly the second amendment means.  For my part the more Daley and Chicago ram their faces into the SCOTUS fist the more clearly the second amendment will be explained.  A good thing.

June 25, 2010

Kagan Comments

Filed under: Politics,SCOTUS — Tags: , , , , — Obtuse Observer @ 11:59 am

Because the Senate confirmation hearings start Monday I thought I’d post up a few comments about where I think the Republicans will focus their questions. 

Also, until very recently I believed in the rubber stamp.  The Senate should give due deference to the President’s choice as part of the spoils system; that is, elections have consequences. 

However, given the importance of the job and given the trend away from constructionist views and advocacy of a living constitution to replace properly amending the constitution (who wants to bother with that nonsense anyway… hell Woodrow Wilson told us over a hundred years ago that the constitution was little more than an obstacle to engineering a better society.  Bang up jobs guys.)

But I digress.



I’d like to post two comments from Kagan that I found interesting and, in my opinion, fatal to her elevation as well my reactions to those comments.

The first is from a law review article she wrote in 1995.


It is an embarrassment that the President and Senate do not always insist, as a threshold requirement, that a nominee’s previous accomplishments evidence an ability not merely to handle but to master the “craft” aspects of being a judge. In this respect President Clinton’s appointments stand as models. No one can say of his nominees, as no one ought to be able to say of any, that they lack the training, skills, and aptitude to do the work of a judge at the highest level.

“Confirmation Messes, Old and New,” 62 U. Chi. L. Rev. 919 (1995)


My only question, which will be softballed by the democrats prior to those nasty republicans when the ask her point blank, “Do you meet the standard for a Supreme Court Judge you advocated in this law review article.”  The answer, on its face is no.  She’s never been a judge and his minimal experience in the practice of law.

Her most important work has been primarily giving effect to policy be it public in the Clinton administration or private with her work in law school administration most notably as the Dean of Harvard Law School.  

Her efforts as an advocate in those positions follow quite naturally from the conclusions drawn in her thesis for her degree as a Master of Philosophy in Politics from Oxford (never mind Obama,  she’s a woman of the people.. many of us have advanced degrees from Oxford):  Development and Erosion of the American Exclusionary Rule! A Study in Judicial Method.


Judges are judges, but they are also men.…  As men and as participants in American life, judges will have opinions, prejudices, values.  Perhaps most important, judges will have goals.  And because this is so, judges will often try to mold and steer the law in order to promote certain ethical values and achieve certain social ends.  Such activity is not necessarily wrong or invalid. The law, after all, is a human instrument—an instrument designed to meet men’s needs.…  Concern for ethical values thus has an important role to play in the judicial process.  For in the last analysis, the law is a very human enterprise with very human goals.  p. 120   


Two points interested me. 

The first point is her explicit advocacy of judicial activism in pursuit of goals the judge approves of (provided, one presumes, the judge sees eye to eye with Kagan’s opinions on the issue before the court.) 

The single most important feature of a judge is impartiality.  A judge with a goal is a judge interested in the outcome of the case.  Should thast occur,  the judge has a clear cut duty to recuse himself. 

The second point is her abandonment of natural law in favor of positive law.  This flies in the face of centuries of our shared legal history with England.  The subject requires its own post but suffice it to say that if law gives force to morality and law and morality are contructs to serve humanity then the law is mutable and subject to the whims of those most able to enforce it rather than having immutable and constant authority  which would defy those individuals who would bend it to serve society as they see fit.  The constant objective value of moral absolutes is a fundamental building block of western culture for thousands of years as expressed in the English Common Law tradition.  I’m not fond of a Supreme Court Nominee who finds the notion quaint.

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