Dear Dahlia,
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StumbleUponI have not begun to absorb today's Supreme Court opinions. Atkins v. Virginia—holding by a 6-to-3 vote, that executions of the mentally retarded is "cruel and unusual punishment" is clearly the most important story of the day and a historic event. The fact that we have been virtually alone in the world in executing the mentally retarded has made much of the rest of the world consider us barbaric. I'm glad we have a long weekend before resuming this exchange on Monday, because there is much to think about.
My day has been blown by the court's handing down a decision in a case I argued, Utah v. Evans, so I haven't been able to look carefully at anything else yet. This was a fight between Utah and North Carolina over the last seat in Congress. Utah claimed that the only reason North Carolina won the seat is that the Census Bureau used a method called "hot deck imputation" to account for missing or unreadable data for a number of households. Utah sued the Census Bureau claiming that using this kind of statistical method violates the Census Act and the Constitution because it isn't an "actual enumeration."
North Carolina intervened to defend its 13th seat. This was the state's fifth trip to the Supreme Court in the past decade on redistricting issues, the others all involving racial redistricting. (The Tarheel State has apparently become the Bermuda Triangle of redistricting.)
This decision was close, with five votes to uphold the bureau's decision. The chief justice surprised some press people, who called me today by joining with Justices Stevens, Souter, Ginsburg, and Breyer to uphold the bureau. Had the chief not voted that way, the case apparently would have been a tie, with four votes to affirm the lower court (which had favored the Census Bureau and North Carolina) and four to reverse. Justice Scalia didn't vote on the merits: Because he believes that a court has no authority to order the president to change the result after the Census, he says that the district court had no jurisdiction to rule. The effect of that 4-to-4-to-1 split would be that North Carolina still got the 13th seat—a tie goes to whoever won below. At least that's what we on North Carolina's side thought should happen and why we pressed the jurisdictional argument in hopes of persuading one justice on that basis. The chief's decision to join the majority—which for all I know was his view along—did not change who got the seat in Congress, but it avoided a potentially messy outcome by producing a cleaner result.
Speaking of the chief justice, you ask about reports he is resigning at the end of the week. Those reports are never credible. Justices who step down don't ever tell anyone in advance. The chief seems to love his job and not to have slowed a single step. Although his opinions have mellowed over the years, he's still as brusque from the bench as ever. I don't think he's going anywhere.
If there is a vacancy on the court, White House counsel Alberto Gonzales seems like a very, very likely choice. As long as he doesn't agree to write for Slate's "Breakfast Table." Off-the-top-of-the head Internet writing is not advisable for anyone on a true short-list.
Talk to you Monday.
Walter
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Notes From the Fray Editor:
The Breakfast Table Fray has remained a shining example for all. The Table moved from discussions of the merits of Atkins to broader discussions of the nature of court representation. The Fray moved along with it. Several incisive debates about the nature of contemporary judicial federalism and Dellinger's "rule of three" have ensued. One of the best Frays ever began with Dira Necessitas's supposition that Lithwick would stop her Scalia-bashing—a harmless introduction to a fascinating juridico-psychoanalysis (or psycho-juridical analysis).
Notes From the Fray:
[Dellinger] has the good sense to understand that judicial overreaching is not a liberal or a conservative problem but an institutional one that should be resisted by everyone who has a shred of faith in democracy and, in particular, in the increasingly quaint idea that popular legislatures should make legislative decisions….
There is a longer-term insidious consequence of judicial overreaching, too, that takes the form of executives and legislatures dallying about nearly everything really controversial in the hope -- increasingly realized -- that they will be relieved of the hot potatoes by the courts, especially the SCOTUS.
-- Publius
(To reply, click here.)
I challenge [Lithwick's] shorthand characterization of that Federalism jurisprudence as "efforts at curbing congressional overreaching (often to give powers back to the states)".
That portrays some of the less controversial of the Court's Federalist opinions. But the most controversial and decidedly activist sequence of the Federalist opinions -- their so-called Eleventh Amendment jurisprudence, named for the Amendment that they now admit does not say what they earlier said it says -- has nothing to do with Congressional overreaching. The issue in the cases I was referring to in the quoted paragraphs above (including the case that the Court agreed this morning to hear) and which I believe Dellinger was referring to did not concern federal legislation whose purpose was to usurp for the federal government powers traditionally held by the states. The statutes at issue have broad applicability not just to state governments but to private entities also.
The Court's conservative narrow majority says the Constitution protects states from being subject to such legislation, this notwithstanding their recent acknowledgment that the text of the Constitution actually contains no such protection.
-- Beverly Mann
(To reply, click here.)
Let's apply Dellinger's analysis to Castillo's streak. The reason that the "Latin American record" was noted and celebrated was that it matters enormously to an important group of baseball fans - Latin Americans in their native countries. Prowess in baseball is an important signal to many in those countries that they belong (maybe more important than prowess in soccer, because the Dominican Republic et al. have great success in placing players in the best professional baseball league). That's why people in Latin American countries know which Latin American players have the most career hits, career wins, the best batting average, etc. Until they stop paying attention to the success of Latin American players compared to other Latin American players, then it's reasonable for baseball to do so, even under Dellinger's analysis.
Besides, it's good marketing.
-- randy khan
(To reply, click here.)
(7/25)