"The Hunting of the Snark"

by: Jay Stevens

Tue Jul 01, 2008 at 12:29:15 PM MST

In the first case to review the government's secret evidence for holding a detainee at Guantánamo Bay, Cuba, a federal appeals court found that accusations against a Muslim from western China held for more than six years were based on bare and unverifiable claims.

With some derision for the Bush administration's arguments, a three-judge panel said the government contended that its accusations against the detainee should be accepted as true because they had been repeated in at least three secret documents.

The court compared that to the absurd declaration of a character in the Lewis Carroll poem "The Hunting of the Snark": "I have said it thrice: What I tell you three times is true."

"This comes perilously close to suggesting that whatever the government says must be treated as true," said the panel of the Court of Appeals for the District of Columbia Circuit.

And now you know why the administration was so dead-set against giving detainees hearings on their incarceration.

At this point, it seems the only reason to oppose habeas corpus for detained foreign nationals is to avoid embarrassing the Bush administration and its supporters.

In short, the rationale for the unitary executive and the extreme national security powers given it are unraveling before our eyes. The question is, will these new powers go unchallenged, even as they're shown to be arbitrary and capricious?

Update: As usual, I don't know what the h*ll I'm talking about. CharleyCarp explains in the comments:

Parhat isn't a habeas corpus case, it's review under the Detainee Treatment Act.  That is, this is the thing that the Bush Administration had Congress set up, thinking it couldn't lose.  Although the opinion was written by Judge Garland, it's worth noting that Chief Judge Sentelle and Judge Griffith also sat on the case, and neither dissented from either the result or the reasoning.  Griffith, as folks might recall, was one of the judges in the Gang of 14 Compromise.  Sentelle is a very reliable conservative.  That this is too much for them is really saying something.

DC gun ban overturned

by: Jay Stevens

Thu Jun 26, 2008 at 12:52:55 PM MST

I seriously doubt that anyone reading this blog needs a recap of what was at stake, but in short the idea that firearms should be limited to "well regulated militias" has effectively ceased to be a constitutional argument.

That said, the Heller decision still left gray areas. The SCOTUSblog's Tom Goldstein:

Individuals have a constitutional right to possess a basic firearm (the line drawn is unclear, but is basically those weapons in general lawful use and does not extend to automatic weapons) and to use that firearm in self-defense.  The government can prohibit possession of firearms by, for example, felons and the mentally ill.  And it can also regulate the sale of firearms, presumably through background checks.  The Court leaves open the constitutionality of a licensing requirement.

The decision also strikes down disassembly laws, but Basically the SCOTUS has upheld the status quo. The decision really doesn't limit or force change on the way most Americans think about guns.

And honestly this decision was no big surprise. It even went further than expected.

Of course, that doesn't mean good ol' Dennis Rehberg isn't mopping his brow in relief that he won't have to back down from his bold secessionist talk. Just a little reminder about our Representative's courage when confronted with authority:

Remember, this group's ringleader - Rehberg - has folded each and every time in the face of government authority when civil liberties have been on the line. Patriot Act. Real ID. Torture. Habeas corpus. Domestic spying. Warrantless wiretapping. He supports waging war without a declaration from Congress, and the theory of the unitary executive. In short, his stance on civil liberties was succinctly expressed by our state's Republicans' choice for president:

"Our most basic civil liberty is the right to be kept alive."

I just wish our representatives were as eager to talk trash over our other constitutionally-guaranteed rights, like those found in the Fourth Amendment, say.

SCOTUS upholds habeas corpus -- by a single vote

by: Jay Stevens

Thu Jun 12, 2008 at 10:59:27 AM MST

Justice Kennedy:

The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.

That wasn't so hard, was it?

Apparently it was for the dissenters, the usual gang of executive-privilege fanboys: Scalia, Roberts, Alito, and Thomas. Roberts' dissent implies that the judiciary has no business in interpreting the law; Scalia plays the GOP political canard of fear:

The game of bait-and-switch that today's opinion plays upon the Nation's Commander in Chief will make the war harder on us. It will almost certainly cause more Americans to be killed. That consequence would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic. But it is this Court's blatant abandonment of such a principle that produces the decision today....

[Today's decision] breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner.

The Nation will live to regret what the Court has done today. I dissent.

Seriously, who believes Scalia is an independent justice anymore? Certainly not when he's cutting and pasting official Republican rhetoric into the Supreme Court's decision, regardless of whether that rhetoric has any basis within the law.

GOP: Prove your right to vote!

by: Jay Stevens

Tue May 13, 2008 at 17:49:12 PM MST

At the time of the court decision, Loyola law professor Rick Hasen wrote:

...I am disappointed by how cursory that opinion was in its review of the state's interest in light of the highly partisan atmosphere of election administration, and I fear that, despite the Stevens-Kennedy-Roberts' opinion's best intentions, this opinion will be read as a green light for the enactment of more partisan election laws in an attempt to skew outcomes in close elections. It is a real disappointment from that perspective.

And, on cue:

The battle over voting rights will expand this week as lawmakers in Missouri are expected to support a proposed constitutional amendment to enable election officials to require proof of citizenship from anyone registering to vote.

Steve Benen:

Proving U.S. citizenship is tougher, creating a hurdle that's harder to clear. Missouri voters would likely have to produce an original birth certificate, naturalization papers, or a passport in order to participate in an election, and a whole lot of eligible voters would likely be denied a ballot or decide in advance it's not worth the trouble.

Insane.

SCOTUS to the disenfranchised: "Get over it!"

by: Jay Stevens

Mon Apr 28, 2008 at 12:27:44 PM MST

The SCOTUS actually acknowledged the partisan nature and purpose of the Indiana law (passed by a Republican legislature, signed by a Republican governor), but the majority opinion dismissed concerns of partisanship:

While the Court's main opinion said it was "fair to infer that partisan considerations may have played a significant role" in enacting the photo ID law, it went on to say that that law was neutral in its application and was adequately supported by the justifications the state had offered.

"Neutral in its application"? And "adequately supported" by the "justifications" from the state?

Lethal injection ruled humane by SCOTUS

by: Jay Stevens

Thu Apr 17, 2008 at 06:27:33 AM MST

Chief Justice Roberts opined that "some risk of pain is inherent in any method of execution - no matter how humane," and said that risk was necessary to carry out the death penalty, which is unquestionably legal.

He also set a high bar for future challenges to carrying out the death penalty. To halt an execution, defense lawyers must show that there is a "substantial risk" that the condemned prisoner will suffer "severe pain," the chief justice said. And they have yet to provide such evidence, he added.

Justices Scalia and Thomas rejected even that criteria, and said they would "reject all challenges to an execution method unless it was 'deliberately designed to inflict pain.'" (The president, of course, agrees, unless the prisoner is to be kept alive.)

According to Montana Attorney General, Mike McGrath, the SCOTUS decision does not affect a lawsuit against our state's lethal injection policy, because Montana's constitution is stricter on the issue:

The ACLU says that the Montana Constitution sets a higher standard for human dignity than the U.S. Constitution, and that lethal injection by Montana standards is unconstitutionally cruel and unusual punishment.

Here in the state, most consider the death penalty politically inviolate. However, there's a movement afoot in Montana to ban it, with a variety of political supporters. A death penalty ban passed the Montana state Senate in the last session, thanks to support from conservative Christian Republican legislators. (Naturally Scott Sales quashed the bill in the House over worries of how it would hurt him politically.)

Personally ambivalent about the concept of executions, I am appalled at the unequal application of the punishment, the number of wrongly convicted prisoners on death row, and the cost and legal efforts it requires to implement. Apparently Montanans from across the political spectrum agree with me. Perhaps, with a new House majority leader, we could actually have a debate on the issue the next go-round, eh?

Montana secessionists full of sound and fury

by: Jay Stevens

Tue Feb 26, 2008 at 07:37:45 AM MST

AN EXTRA-SESSION RESOLUTION OF INDIVIDUAL LEGISLATORS OF THE 60TH MONTANA LEGISLATURE AND OTHER ELECTED MONTANA OFFICIALS URGING THE UNITED STATES SUPREME COURT THAT ANY "COLLECTIVE RIGHTS" HOLDING IN D.C. V. HELLER WILL VIOLATE MONTANA'S COMPACT WITH THE UNITED STATES...

Additionally, these fellas say that a decision contrary to their views on the Second Amendment violates the state's compact upon entering the Union, that, if broken, will lead to...what?

Montana reserves all usual rights and remedies under historic contract law if its Compact should be violated by any "collective rights" holding in Heller...

Of course there's no way in h*ll these fellas will ever follow through on this threat. None whatsoever. They neither have the actual ability nor the courage -- if Rehberg is any guide -- to follow through on this resolution. Two numbers:

$1.66. That's the amount of federal money we receive for every $1.00 we pay in federal taxes.

250. That's the estimated number of nuclear warheads the federal government has here in Montana.

Remember, this group's ringleader - Rehberg - has folded each and every time in the face of government authority when civil liberties have been on the line. Patriot Act. Real ID. Torture. Habeas corpus. Domestic spying. Warrantless wiretapping. He supports waging war without a declaration from Congress, and the theory of the unitary executive. In short, his stance on civil liberties was succinctly expressed by our state's Republicans' choice for president:

"Our most basic civil liberty is the right to be kept alive."

Imagine how that will look on Rehberg's battle flag.

No, this isn't a courageous stand, it's a political stunt in an election year. Our state's attorney general has already written a brief to the Supreme Court on the DC Gun Ban, but he's a Democrat. So what's left, but to holler and yell and make big threats you can't follow through on?

Good thing for the Montana secessionists the SCOTUS will probably uphold the status quo, rule the ban unconstitutional, and affirm the individuals' right to bear arms. Otherwise people might expect them to do more than talk.

The SCOTUS indicates it will uphold voter ID law

by: Jay Stevens

Fri Jan 11, 2008 at 08:28:08 AM MST

Justice David H. Souter countered, "That would be a virtue, but one of the vices would be that it would be after the election, and the entire matter would be academic for another two years."

Justice Ruth Bader Ginsburg raised a similar objection. "The reason they are bringing a facial challenge is because the horse is going to be out of the barn," she said. "They will have the election, and just what they are afraid of could happen - that the result will be skewed in favor of the opposite party."

The conservatives of the court want to wait until real damage is proven (wasn't that shown in the Georgia voter ID case?) -- although they require no such similar proof of damage if the state lacked a voter ID law. The liberal justices? Well, they apparently are concerned about the civil rights of those that will be adversely affected by the law.

Dahlia Lithwick:

I fear I am counting five justices who believe that a nonexistent problem can be constitutionally cured by burdening the fundamental right to vote. Happy byproduct? Doing away with those pesky facial challenges that liberals like to use to address massive injustices. So in the guise of doing away with hypothetical future challenges to a law, the court is poised to uphold a law that solves hypothetical future problems in voting. And for those of you wondering why the court didn't see fit to release audio for today's monumentally important argument, the answer remains, who knows? But here's one guess: The justices didn't want to be caught on tape sounding like the same 5-4 court that decided Bush v. Gore, even if nothing has changed.

What's up with conservatives? Don't they like civil rights? Don't they want people to vote? Oh...wait...

SCOTUS allows price fixing

by: Jay Stevens

Thu Jun 28, 2007 at 23:18:26 PM MST

Striking down an antitrust rule nearly a century old, the Supreme Court ruled today that it is no longer automatically unlawful for manufacturers and distributors to agree on setting minimum retail prices.

Price fixing! Legalized price fixing! So much for open competition! I can't wait to see those milk prices go up!