Supreme Court Roundup

Hey, Em! You've been on blog hiatus all week, a week that's seen a flurry of monumental court decisions handed down at end of term, and all you give us in your Saturday morning dispatch is SamCyborgs and Sprite (or is it Gatorade?) slogans about how we need to "get in the game"? C'mon, Dawg. I've been Jonesin' for some legal analysis. Has your job turned you into a self-censoring diplomat? Don't tell me that you've started to identify with the beltway establishment. Next thing you know, you'll be quoting David Broder and the WaPost editorial board as if they peed chablis. Time to put the brakes on that. Let "the guru" speak, I say.

To help, I'll get things started. Obviously, the dog that barked this week was Hamdan v. Rumsfeld, in which the court (or at least five of them) decided that they were not, in fact, castrati, and that the United States did actually have a Constitution and a "rule of law" that the preznit was capable of violating. A remarkable finding. More remarkable? That three justices (Scalia, Alito, Thomas--or is that really just one?; if you're counting brains or backbones the number could go even lower) could disagree on this point. "Silent Cal" Thomas distinguished himself by breaking his vow of monkish quietude to read his dissent from the bench, and letting us know that he's really, really afraid, so he needs a big, bad king-daddy to protect his sorry-ass from the monsters hiding under his crib. Frankly, this is exactly why Locke and Sidney argued that a functioning republic couldn't extend religious and political tolerance to Catholics: they'll sell you out to the authoritarians and absolutists every time. [Before our Catholic readers get upset, I'll quickly add that Catholicism has changed a lot for the better over the last 300 years--thanks largely to the Protestant challenge--and has often been a progressive force and valuable voice in American democracy; Anthony Kennedy, another Catholic, was decisive in saving the Constitution in this case. But Locke and Sidney's point could be justly refined to say that right-wing Catholics can't be trusted to preserve a constitutional order.] This case has been getting a lot of comparisons to US v. Nixon and Youngstown Steel, but I think it may be a Brown v. Board moment too, going beyond a narrow claim on executive power to affirm an essential precedent for American liberty in the law. The Court announced that it will no longer tolerate a corrupted legal system, one based on presidential assertions of infallibility.

There were lots of other interesting findings this week. Surprisingly enough, I'm not with the liberals on all of them. The Kansas sentencing case, for example, in which the conservative majority upheld a "tie goes to the hangman" rule, strikes me as reasonable judicial restraint. States are due a fair amount of deference in sentencing guidelines, and the idea that mitigating factors must "outweigh," not merely "balance out," aggravating factors in DP cases seems a plausible enough rule. The Court has shot itself in the foot before when it moved too far against capital punishment; it should be wary of doing the same again. I'm also somewhat divided on the Texas redistricting case. The basic issue--whether or not the mid-decade DeLay gerrymander hurt minority voting power in violation of the amended Voting Rights Act--was a dog from day one. The minority delegations from Texas were never seriosuly affected by the redraw: Hispanic reps remained the same before and after. Although DeLay's move was corrupt and contemptible from the start, it's hard to see how exactly it violates the Constitution or the VRA. But Walter Dellinger, writing in a superb series of exchanges with Dahlia Lithwick at Slate, has convinced me that the redraw should have fallen on other grounds: that it had no conceivable "legislative" purpose other than sheer partisan advantage. Kennedy is clearly troubled by the gerrymander, but he doesn't want to make a move without a clear principle upon which to decide such cases. I respect that restraint, but, as Dellinger suggests, Kennedy could have found such a principle had he just worked a little harder.

There are other interesting cases I'm leaving out. But someone needed to drop a bomb and wake Emery from his jurisprudential slumber. As always, I'm happy to oblige.