GELPI ENVIRO PANEL THOUGHTS

A few thoughts on yesterday's forum on this past Supreme Court term's enviromental decisions (organized by GELPI; panel participants here). The cases discussed were Engine Manufacturers Association, Norton, Alaska Department of Environmental Conservation, Department of Transportation v. Public Citizen, and Miccosukee. From my perspective, three of the interesting themes that emerged were:

1. The relationship between the Court's broader federalism jurisprudence and these cases, especially Engine Manufacturers and Alaska Department of Environmental Conservation, both of which upheld power at the center over power in the states. In the latter case, the pro-federalism conservatives were in dissent, so a complaint that this case is not consistent with the position staked out by them would not be fair. But a criticism of Engine Manufacturers along federalism grounds strikes me as fair, at least upon first glance, even though I'd need some more information to be sure about this judgment. To be clear: there was some dispute on the panel concerning charges of incoherence in the Court's approach to these cases with respect to the broader federalism issues.


2. The significance of legislative history in statutory construction. One of the criticisms voiced yesterday of Engine Manufacturers was that Scalia's majority opinion fails to avail itself of evidence of congressional intent, even in this case where legislative intent is fairly clear. I don't know enough about the professional debates surrounding the Clean Air Act to be able to make an informed judgment on this point, but I must admit that a resort to dictionary definitions of the word "standard" (as Scalia does in his opinion) is probably too rigid and misleading an approach. In this context, one of the participants (I think Bob) made reference to this wonderful passage from Stevens's dissent in BedRoc Limited, another case from this term:
   

   In refusing to examine the legislative history that provides a clear answer to the question whether Congress intended the scope of the mineral reservations in these two statutes to be identical, the plurality abandons one of the most valuable tools of judicial decisionmaking. As Justice Aharon Barak of the Israel Supreme Court perceptively has explained, the “minimalist” judge “who holds that the purpose of the statute may be learned only from its language” retains greater discretion than the judge who “will seek guidance from every reliable source.” Judicial Discretion 62 (Y. Kaufmann transl. 1989). A method of statutory interpretation that is deliberately uninformed, and hence unconstrained, increases the risk that the judge’s own policy preferences will affect the decisional process. (124 S. Ct. 1587, 1598)

   
   


3. The informational value of Environmental Impact Statements. One of my research interests is the relationship between public information and government activity. One of the complaints raised by one member of the panel (David Vladeck, I believe) was that the current Court does not recognize the informational value of Environmental Impact Statements for the broader public. This is a point that one might expect environmentalists in particular to make, to be sure. Neither Scalia's opinion in Norton nor Thomas's opinion in Public Citizen has much time for this point.

All in all an informative panel.

SLOW TRAIN REDUX

Saw Fahrenheit 9/11 last night. It was unquestionably better, as a film, than most movies I've seen in the past few years, and it makes some gut-wrenching points about who pays the costs of war and who benefits. Paul Krugman's review is probably the best one that I've read -- if combined with Christopher Hitchens's considerably less friendly review (which I hesitate to link to since it is so idiosyncratic and distracting).

There is one troubling point in the movie that needs to be addressed, however. As Moore is building his case for Bush family -- Saudi family connections, he plays a clip from prince Bandar's interview with Larry King, in which Bandar says that the members of the bin Laden family are very nice or something like that. There were sniggers of laughter from the audience at that point. I found the hint of a marriage of left wing populism and xenophobia worrisome.

Worrisome, but not unprecedented. Remember the third stanza from Bob Dylan's 1979 Slow Train Coming?

All that foreign oil controlling American soil,
Look around you, it's just bound to make you embarrassed.
Sheiks walkin' around like kings, wearing fancy jewels and nose rings,
Deciding America's future from Amsterdam and to Paris
And there's a slow, slow train comin' up around the bend.

EUROPEAN REACTIONS TO DETENTION DECISIONS

Three editorials on the Supreme Court's recent detention decisions:

1. Le Monde, Le retour au droit (the decisions are "a victory for fundamental democratic norms")


2. Tagesspiegel, Rückkehr des Rechts ("The judiciary put politics in its proper place.")


3. Frankfurter Rundschau, Ein Erfolg? ("A defeat for Bush? A success for Bush? [Hamdi]lies somewhere in between, and it certainly does not go far enough.")

CONGRATULATIONS!

If you live in Virginia, and you're gay, you're in worse shape today than you were yesterday!

Maryland is still accepting new residents, you know. . .

(That last line is for Anita, whose Maryland-pride I have unfairly ridiculed on occasion!)

MORE: Er . . . tomorrow's July 1st, of course.

FOREIGN LAW CITATIONS?

Two articles from Legal Affairs on foreign law citations in U.S. courts: one, contra, by Judge Richard Posner, and one, pro, by GULC Professor Vicki Jackson. Judge Posner understates the function of amicus briefs in bringing aspects of foreign law to the attention of the Court. To be sure, this means that foreign law will be translated through a strategic context, but so are other kinds of facts and rules that get the judges' attention.

In addition, it may be true that citations to foreign law are part of a process of "mystification" ("disguis[ing] the political decisions that are the core, though not the entirety, of the Supreme Court's output," as judge Posner puts it), but that's a general critique that can be made of much judicial argumentation and justification. One would then need to see such foreign citations as a habit fundamentally similar in kind to other kinds of argumentative moves made by the Justices -- albeit appealing to different constituencies than, say, references to "original intent." Not sure where that gets us. But I need to think about this some more.

Suffice it to say that I'll side with Prof. Jackson in the meantime!

ENVIRO LAW EVENT TOMORROW

Got this from GELPI:

The Georgetown Environmental Law & Policy Institute and Georgetown's Supreme Court Institute will be sponsoring a panel discussion of the Supreme Court's environmental decisions from the 2003-04 docket. The details for the event are as follows:

Panelists:
Timothy Bishop, Partner, Mayer, Brown, Rowe & Maw

Robert Dreher, Deputy [Executive] Director, Georgetown
Environmental Law & Policy Institute

Edwin Kneedler, Deputy Solicitor General,
U.S. Department of Justice

Richard Lazarus, Professor of Law,
Georgetown University Law Center

David Vladeck, Associate Professor of Law,
Georgetown University Law Center

DATE: July 1, 2004

TIME: 3PM

LOCATION: Georgetown University Law Center,

McDonough Hall, Room 200

RSVP: (contact info here)

I'll be there! I think that Peter Byrne (GULC) is moderating.

SUICIDE PACT, REALLY

The Curmudgeonly Clerk has a post on the meaning of the term, here. For the term to have bite in this context, it has to mean (I think) that a bad Court decision upholding rights will aid terrorists in some way. When there is an actual threat of death (however one wants to calculate its probability), speaking of "suicide" carries a pretty clear message of bringing the causes of that death closer in some way.

SUICIDE PACTS

Compare the following quotes on Monday's Supreme Court terrorism rulings:

US Supreme Court Justice Jackson famously opined that the Constitution "is not a suicide pact." Apparently nobody bothered to tell the current Supreme Court. [T]he court held today that the terrorists down at Guantanamo are entitled to get into US courts to challenge their imprisonment. (From here)

Could Lincoln have effectively fought the Civil War under [Scalia's and Stevens's] reasoning? (From here)

Indeed, in the hands of the Jihadists, a writ of habeas corpus would prove more deadly than a hijacked plane or weaponized smallpox, for with it, they could unleash Freedom against itself in an Ouroborobian orgy of Islamofascist terror. (From here)

I'm finding it a little hard to engage the argument that the Supreme Court a) just made the Constitution into a "suicide pact" (meaning, I gather, that people will die because of their rulings) and b) just made "winning" the "war on terror" substantially more difficult, even to the extent of tilting the scales in the direction of losing the war itself.*

So I find comfort in the ironic Fafblog horse laugh once again. Luckily, future experience will determine who is on target here. . .

. . .unless, of course, there is no "winning" the "war on terror" in the same way that there was a winning of the Civil War. In that case, moves in the construction of the law of detentions will become an established part of the eternal game of political enemy construction, to borrow another term from Murray Edelman.

That's probably where my money is right now. The war on terrorism is the new Cold war, speaking in terms of domestic politics, and the existing coalition on the right will produce argument upon argument about how folks on the left -- and institutional whipping posts like a powerful Supreme Court that rules the wrong way politically -- are not taking the threat seriously enough.

And so it goes.

*MORE: My comments are actually a little misleading, since Ken Masugi is discussing a concurring opinion and criticizing a style of reasoning that did not persuade a majority on the Court. It remains to be seen what the folks at Claremont will say about what the Court -- as opposed to Scalia and Stevens -- actually did on Monday. Plus, I might be accused of taking the term "suicide pact" too literally, but I don't see how Rasul could produce anything like a national "suicide pact" unless it causes actual harm in the war on terrorism. The difficulty of assessing whether that is true is one of the main points of the post, though.

MORE MORE: In his usual sober style, Phil Carter has a balanced article in Slate on what he calls the "operational implications" of this week's detention cases. He makes three points that are worth emphasizing: 1) the Supreme Court left a lot of room for the development of appropriate procedures below, but 2) these procedures will probably impose some burdens on the government, but 3) the cases are also a "reaffirm[ation of] America's commitment to the rule of law at a critical time in our nation's history."

And in defense of Eugene Volokh, spinning out hypotheticals is one of the ways of staking out the ground covered by Supreme Court decisions. Constitutional interpretation needs to be seen as a process that involves the courts, professional interpreters, other government actors, and the public as a whole. I suspect that I disagree with Volokh on the significance of the principles themselves -- political scientists are probably freer to describe the non-principled substance of judicial decisionmaking than law professors, whose prestige often relies on their ability to grasp, expound, and advance principle.

Moreover, in discussing his particular hypothetical of 50,000 surrending troops, Volokh simply multiplies the costs involved in implementing the Court's decisions in order to highlight those costs. A basic problem for policy design here is that cost and protection of innocence (read, justice) are probably proportional. In what proportion? Hard to tell. The administration will have incentives to focus on the costs -- especially in the context of the court-unfriendly rhetoric that has become one of the mainstays of the Republican party. Rights advocates probably have incentives to minimize the costs. A sensible approach would both admit that there will be costs, focus on what they are, and engage, seriously, the extent to which they are worth paying. Carter goes in that direction, as does Michael Froomkin, here.

RAISING THE TONE

Adam Felber on raising the *!@$& tone. Make sure you read the comments. Via Anita.

CYBORG THREAT

The Billboard Liberation Front's latest action, here.

HAMDI

First thoughts on Hamdi: 8 of the 9 Justices were unhappy with the expansive conception of Executive power outlined by the Bush administration. Only Justice Thomas sided with the administration on all relevant points.

Six Justices (O'Connor, Rehnquist, Kennedy, Breyer, Souter, and Ginsburg) agreed that Hamdi is entitled to judicial contestation of his designation as an enemy combatant, although Souter and Ginsburg see the government-friendly language in O'Connor's opinion as less than perfect. The remaining two, Scalia and Stevens, argued that the plurality's approach erodes liberty by avoiding clearly established rules against executive detention in the absense of a) a formal suspension of the writ of habeas corpus or b) criminal charges.

Five Justices (O'Connor, Rehnquist, Kennedy, Breyer, and Thomas) argued that the executive detention of enemy combatants is authorized: the first four thought that the congressional authorization of the use of force provided that authorization, and Thomas sees an inherent executive power to detain.* Scalia and Stevens reject executive detention of enemy combatants, and Souter and Ginsburg only seem to accept such detention in a "genuine emergency."

What happens to Hamdi himself -- and what sort of rules exist for future cases of this sort -- will now be heavily dependent on what kind of procedure is implemented below. Four members of the Court explicitly left the door open to military tribunals (see p. 31), and Thomas could probably be relied upon to provide a fifth vote. But the government is on notice that four members of the Court -- and possibly more, depending on the views of those who joined O'Connor's opinion -- are not going to be deferential.

For more, see here . For the opinion itself, see here (PDF file, via SCOTUSblog).

* MORE: Greg Goelzhauser has more, here. He also sent me a kind e-mail to point out that my characterization of Thomas's view is misleading, since Thomas follows the plurality in finding authority to detain in the congressional authorization of military force rather than in executive power as such. I think that Greg is right. Greg is also right that Breyer's vote is very interesting here, as Marty Lederman also notes, here.

QUIN AT SA ON SCALIA

Quin at SA has an interesting post on a reference to foreign law in a Supreme Court opinion, from. . .wait for it!. . .Scalia. Seems to me that the finer distinctions suggested in comments don't really let Scalia off the hook. Remember, in Lawrence, Kennedy's opinion was taking aim at a "fact" that was presumed by Burger's concurring opinion in Bowers, namely, that sodomy was universally condemned in the West and that that condemnation was ongoing. Kennedy's references to foreign law on sodomy were clearly aimed at demolishing that claim, i.e., establishing that it the presumed "fact" was not a fact at all, and that Burger should have tempered his claims in light of the actual state of foreign law.

MORE: Feddie replies here.

FOR CAROLE COLEMAN

For Carole Coleman, thanking her for her interview with George Bush:

Dear Ms. Coleman:

Just writing to thank you for doing your job as a journalist in your interview with President Bush this week. Even though our President seemed intent on sustaining his position as, well, "big dog" (as in, big dog can interrupt you, but you can't interrupt big dog), you continued to ask some of the hard questions that our home-grown press corps is too cowed to ask. For that, you should be commended.

It is a sad day when U.S. citizens must turn abroad for truly hard-hitting questioning of our President. That said, thank you very much for your service to folks on this side of the Atlantic as well.

Sincerely,

Brett Marston

Send your own, here.

For context, see here and here.

MORE (Monday morning): Thomas Nephew has some thoughts on the interview here. In response to the substance of Bush's comments in the interview, Thomas writes:

This kind of thing may play well on the Dallas evening news, but you'd think that after Abu Ghraib, American self-congratulation on our virtuousness is not exactly subtle, effective public diplomacy overseas.

Effective public diplomacy is not this administration's specialty.

GET OUT AND VOTE ANYWAY

Despite recent campaign silliness, tell your friends to register and to vote in November.

To my mind, the recent Bush campaign ad that shows Democrats talking too loudly* interspersed with clips of Hitler talking too loudly -- a clear and intentional comparison,** despite attempts by the Bush campaign to pass it off as mere information about speech on the Democratic fringe -- ironically casts the campaign in the proper light. Bush wants the campaign to be about Democrats, not about him. Fair enough. But he also wants to depress the vote by filling the air with negativity -- even as he sends out messages of "optimism." I fear that engaging the discourse can only help spread that negativity and help the Bush campaign achieve its goals. Nonetheless, it's worth underlining that the purpose of this negativity is reasonably clear: vote suppression.

Don't let it get to you!

* phrase "talking too loudly" stolen shamelessly from Bob Somerby.

** I have to disagree with Josh: the claim that Move.On said it first does not obviate the intentional, gut-level comparison that Bush's campaign produced here. Not that hard to see. For an example, imagine pictures to go along with the following text:

Some folks on the Republican - libertarian fringe, in other words, BUSH SUPPORTERS, have compared Democrats to STALINISTS. I repeat: President BUSH's supporters have compared Democratic leaders to STALIN. Imagine that! BUSH folks compared Democrats to STALIN. BUSH, to STALIN! For shame. For shame.

Again, not that hard to see.

Plus, I'm saddened that the Bush campaign folks have taken the tack of complaining that Kerry's campaign hasn't expressed enough "outrage" at the speech of others, speech, moreover, that is in many cases distorted by the Bush campaign's characterizations. Can we call this the "blogification" of campaign rhetoric?