Redstate

Posted at 10:30am on Jun. 23, 2008 Waiting For Heller

Is There A Gun In My Tea Leaves?

By Dan McLaughlin

The Supreme Court's Term is likely to end this Wednesay or Thursday. I noted last Thursday, with the usual cautions about this kind of thing, SCOTUSBlog's observation that Justice Scalia was the most likely Justice to be writing the Court's opinion in DC v. Heller, given that only he and Justice Souter had yet to write majority opinions from cases the Court heard in March. Well, this morning the Court handed down the other remaining case from the March sitting, and it was written by Justice Souter. So the odds would seem now to strongly favor Justice Scalia.

How good is that news for fans of the Second Amendment? Well, it's unlikely that a Scalia opinion will be a bad one when an express provision of the Constitution is involved, but bear in mind that (1) even if he does write the opinion, there's no guarantee that it will be a majority opinion; it could be a plurality that leaves matters more unsettled than ever (e.g., 4 Justices favoring a strong individual right, 4 supporting DC's position, and 1 - usually Justice Kennedy, under the Court's current alignment - refusing to join either side's analysis) and (2) it's very possible that the Court will decide only the scope of the right against federal interference under the unique legal status of the District of Columbia, and won't address the thornier issue of whether the Second Amendment prohibits gun control measures by state governments. And of course, the guesswork could simply be wrong - even if Justice Scalia was originally assigned the opinion, it could end up as a dissent if some Justices changed their minds before it was finalized.

In other words: we can guess all we like, but until we see the opinion we can't know.

Posted in D.C. v. Heller | gun control | Justice Scalia | Law | Second Amendment — Comments (6)/ Email this page » / Read More »

Posted at 10:52pm on Apr. 28, 2008 More Scalia

By Pejman Yousefzadeh

Another good profile--this one from Nina Totenberg at NPR. Be sure to click on both audio links below.

Posted at 10:29am on Apr. 17, 2008 Justice Stevens, Senator Obama, and the Principle of One Justice, One Vote

Tying Together Wednesday Morning's Opinions and Wednesday Evening's Debate

By Dan McLaughlin

If you want to understand precisely why Barack Obama's sneering condescension towards the beliefs and culture of ordinary voters - and willingness to treat them as irrational prejudices - is a concern in presidential politics, you really need look no further than what happens when such attitudes are brought to the Supreme Court, whose Justices Senator Obama wants to pick. Check out the conclusion of Justice Scalia's brief but masterful concurring opinion yesterday Baze v. Rees, taking Justice Stevens to task for his separate opinion urging that the death penalty be held unconstitutional under the Eighth Amendment (a position the Court had taken once before, only to be reversed by Justices then including Stevens himself), despite the many state and federal legislatures that have repeatedly endorsed it, the many juries that have imposed it, the studies supporting its effects, and the fact that the Constitution itself makes explicit references to the death penalty:

Read On...

Posted in 2008 | Democratic Debate | Justice Scalia | Justice Stevens | Obamafiles | Rube-gate — Comments (4)/ Email this page » / Read More »

Posted at 12:22pm on Mar. 19, 2008 Disassociation and the Running of the RiNOs

When Is It Unconstitutional?

By Dan McLaughlin

Yesterday's Supreme Court decision in Washington State Grange v. Washington State Republican Party is interesting on a couple of levels. Coupled with the Court's January decision in the case involving New York's system for nominating candidates to run for judicial elections, the Court seems to be signalling pretty clearly that it's not eager to get into overturning state primary election procedures - a signal the national Democrats are hopefully receiving, not that there's been any move just yet for the loser to follow the Al Gore plan.

Anyway, the short summary is that the Court ruled 7-2 to uphold a state open election system that allowed candidates from all parties to run in an initial election with their chosen party listed, without having been nominated by the party, followed by a runoff for the top two candidates; the major parties challenged the constitutionality of this procedure under a 2000 decision invalidating California's "blanket primary" under the First Amendment's right to freedom of association. The crux of the Washington case was whether the parties have a right to prevent candidates who have not been nominated by the party from using the party label on a ballot open to the general public.

Justice Thomas, writing for the Court, said no:

Posted in Justice Scalia | Law | Supreme Court — Comments (5)/ Email this page » / Read More »

Posted at 2:59pm on Jan. 22, 2008 Still Crazy After All These Years

Remember Who Made This A Divisive Issue

By Dan McLaughlin

I can't add right now to Alex and RightMichigan in commemorating the horror or legal abortion on this 35th anniversary of Roe v. Wade, other than to note the rhetorical corner the proponents of legal abortion have painted themselves into these days. They can't plausibly argue that Roe is well-reasoned constitutional law or embodies a rule that was ever envisioned by We The People in adopting any part of our Constitution, so they are forced to rely on the notion - itself a caricature of conservatism, ironically - that the Court having made a mistake ought not to correct it. They argue as well that the issue is not for the people, having been "settled" by their betters on the Court. They fear arguing on normative or religious grounds that an unborn child is not a human being, but they are equally insistent that the matter is not one for science, as the scientific evidence (of the development of the unborn person and his or her viability outside the womb) has only moved against them in the intervening three decades. Indeed, one searches in vain for a strictly secular and scientific definition of a human being that doesn't come down to the unique genetic code that each of us receives as an embryo and that remains our scientifically traceable unique identifier throughout our lifespans and even after death. (Call an unborn child a "clump of cells" if you want; you still haven't answered the question, "well, whose cells are they?") There's a recipe for legitimate decisionmaking: no popular legitimacy, no grounding in law, religion, morality or science. Just an exercise in raw political will.

Anyway, the merits aside, I think we would do well this day to reflect on Justice Scalia's observation about the political impact of Roe and its distorting influence on our national politics, the courts and the rule of law:

Not only did Roe not . . . resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level, where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue - as it does over other issues, such as the death penalty - but that disagreement was being worked out at the state level. As with many other issues, the division of sentiment within each State was not as closely balanced as it was among the population of the Nation as a whole, meaning not only that more people would be satisfied with the results of state-by-state resolution, but also that those results would be more stable. Pre-Roe, moreover, political compromise was possible.

Roe's mandate for abortion on demand destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level. At the same time, Roe created a vast new class of abortion consumers and abortion proponents by eliminating the moral opprobrium that had attached to the act. . . Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court, in particular, ever since.

Planned Parenthood v. Casey, 505 U.S. 833, 995-96 (1992) (Scalia, J., dissenting). Recall those words next time you hear pro-lifers accused of being the divisive ones. It was the authors and proponents of Roe who made abortion a national issue.

Posted in Justice Scalia | Life Issues | Roe v. Wade — Comments (6)/ Email this page » / Read More »

Posted at 1:33pm on Jan. 16, 2008 Supreme Court: Constitution Not Violated By Use Of Party Conventions To Pick Nominees

Leaving Politics To The Politicians

By Dan McLaughlin

The U.S. Supreme Court today, in a unanimous opinion by Justice Scalia in NY State Bd of Elections v. Lopez Torres, reversed a Second Circuit decision that had overturned New York's system for selecting party nominees for trial judges. The appeals court had held that the First Amendment right to political association of prospective candidates for New York Supreme Court judgeships* were violated by the system of choosing nominees through party conventions dominated by party bosses, rather than through a more directly democratic system such as a primary.

Justice Scalia's opinion starts out with a concise summary of familiar and settled (if theoretically debatable) ground: the Constitution gives a political party some First Amendment associational rights to control its own processes for choosing its nominees, but imposes some restrictions (including Fourteenth and Fifteenth Amendment restrictions against discrimination) on a party's candidate-selection process when the state grants the party the right to a line on the ballot. But as he explains, the problem with the conventions is not any legal restriction on who can throw their hat in the ring but rather a practical, political limit to who can win those contests - a problem for which the solution is necessarily political, not legal:

Read On...

Posted in Election Law | Justice Scalia | Law | Supreme Court — Comments (2)/ Email this page » / Read More »