The Constitution

I've been puzzling over this problem lately, and if I had any desire to be a constitutional scholar, I'd write a book about it (better yet, 5 or 6 law review articles that could then be converted into chapters).

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BACKGROUND:

Proposition 1: As originally designed, the Constitution established that the federal government had enumerated powers.

It was not the case that the federal government had unlimited power under the Commerce Clause and the Necessary and Proper Clause. This is easily seen by the fact that Article II took the trouble to spell out the fact that Congress was empowered to punish counterfeiting, establish post offices, establish a patent and copyright system, coin money, set up bankruptcy law, etc. If Congress already had unbounded power to do anything it pleased (based on some hypothetical and tenuous connection to an aggregate effect on the economy), the rest of Article II would have been pointless.

Thus, when a Bill of Rights was proposed, many Federalists thought it completely unnecessary. As Alexander Hamilton wrote in Federalist 84:

I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?

Or, as Theodore Sedgwick of Massachusetts famously declared in the debate over the Bill of Rights, the Constitution might as well specify "that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper."

That's why they came up with the 9th Amendment: To make clear that the Bill of Rights wasn't meant to be exclusive and that the government was still one of enumerated powers. You can particularly see this in Madison's original draft of what would become the 9th Amendment:

The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people; or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.

Proposition 2: The notion of enumerated powers was not intended to apply to state governments. Not from the U.S. Constitution, anyway. This is fairly simple: The Constitution didn't enumerate any powers of state governments, and the 10th Amendment then made clear that state governments (and the people) retained all powers not explicitly given to the federal government.

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CURRENT SITUATION:

But here we are today. The notion that the federal government is limited to enumerated powers seems a quaint relic of the past. Liberals will call you an extremist if you believe that the federal government has any limit whatsoever on its powers (except for claims couched in civil rights language). And on the flip side, liberals aren't the only ones who maintain a fundamentally anti-Constitutional theory. Many conservatives believe that unless something is literally specified in the Bill of Rights, there is no such right.

Why has this happened? The most obvious reasons for liberal anti-Constitutionalism are Roosevelt's court-packing plan, the Depression, the New Deal, etc. And the obvious reason for conservative anti-Constitutionalism is the excess of the Warren and Burger Courts.

But Roosevelt and Warren are long since dead. Why is it still the case today that (a) most judges are unwilling to hold that Congress's powers are limited in any way to enumerated powers, and (b) many judges and theorists are still drawn to the notion that a constitutional right must be specifically protected (or else they appear to be uneasy and defensive over a constitutional right that is not specifically listed)?

Here's my grand theory: The incorporation of the Bill of Rights against the states has played a subconscious role here.

That's a bizarre theory, isn't it? Why would the application of the Bill of Rights to the states be relevant?

First, once you apply the Bill of Rights to the states, it becomes quite difficult to remember the underlying principle that the Bill of Rights is unnecessary, i.e., because the government's powers are already strictly enumerated. That principle simply isn't true as to the states. In theory, a federal court could still maintain a distinction in its reasoning: When faced with a federal regulation of the press, the court could say (as did Hamilton), "The federal government isn't empowered to regulate the press in the first place," and then when faced with a state regulation of the press, the court could say, "The state government has general police power, of course, but this goes past the limit set by the First Amendment."

But this doesn't happen. It's much easier just to fall into the habit of using the same legal reasoning in both instances. And thus, the principle of federal enumerated powers disappears from such cases.

Second, the conservative resistance to a broad interpretation of the Bill of Rights comes from an instinctive realization that the Bill of Rights shouldn't mean the same thing when applied to state governments. That is, with the federal government -- as originally envisioned -- the Bill of Rights combined with enumerated powers like two sides of the same coin. On one side, the federal government's powers were enumerated, while on the other side, the Bill of Rights made clear (esp. with the 9th Amendment) that there were rights as to all sorts of activities over which the federal government had NOT been given power.

But this concept doesn't apply to the states. When it comes to the states, there are no enumerated powers in the first place; indeed, the 10th Amendment stands for the opposite principle. It makes little sense to interpret the Bill of Rights as if the underlying principle were one of suspicion towards state government power. Thus, there's the urge to circumscribe the Bill of Rights -- which wasn't written with the states in mind -- so that state governments have more of their traditional freedom to experiment in the way that they legislate over various subjects.

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To be sure, all of this is somewhat abstract, and has little to do with the actual (i.e., political) reasons that the Supreme Court has evolved as it has over the past century. But detachment from reality is rarely held against an interesting constitutional theory.

Touching story

Here:

The Kireka slum clings to a stony hillside above Kampala, Uganda, home to at least 5,000 impoverished refugees who live in hand-fashioned shelters bordered by outdoor latrines. The hillside is not only home, but work: Strip quarries line its face. Men dig out its larger rocks, while hundreds of women spend their days in stooped manual labor, pounding the rocks by hand into walnut-sized stones for sale as construction material. They earn about $1.20 per day.

So American aid worker Amy Cunningham could scarcely believe it when she was summoned to Kireka last month for a festive celebration in which dozens of women handed over nearly $900 in wages: their gift to victims of Hurricane Katrina in New Orleans.

Inequality and Startups

One of the most interesting thinkers around -- Paul Graham -- has this essay explaining the connection between inequality and startups:

It sounds benevolent to say we ought to reduce economic inequality. When you phrase it that way, who can argue with you? Inequality has to be bad, right? It sounds a good deal less benevolent to say we ought to reduce the rate at which new companies are founded. And yet the one implies the other.

The Cost of Law Practice

Ted Frank points out an instance where Judge Richard Posner clearly had no idea what he was talking about. The gist is that Posner disallowed any award of legal fees to a law firm where a partner and junior associate spent some 13 hours on a 4-page motion. Since Posner has an encyclopedic understanding of American law, and since he himself works at superhuman speed, he apparently doesn't understand that the typical junior associate might need to spend several hours researching and attempting to understand the relevant caselaw on a given question (which may include looking at dozens of cases that ultimately turn out to be irrelevant or superfluous), in addition to consulting with the partner and the client, reading up on the Seventh Circuit rules, editing the motion, etc.

Racial Profiling

A bit of evidence on the subject:

An Analysis of the NYPD's Stop-And-Frisk Policy in the Context of Claims of Racial Bias


ANDREW GELMAN
Columbia University - Department of Statistics and Department of Political Science
ALEX KISS
Columbia University
JEFFREY FAGAN
Columbia Law School


Abstract:
Recent studies by police departments and researchers confirm that police stop racial and ethnic minority citizens more often than whites, relative to their proportions in the population. However, it has been argued stop rates more accurately reflect rates of crimes committed by each ethnic group, or that stop rates reflect elevated rates in specific social areas such as neighborhoods or precincts. Most of the research on stop rates and police-citizen interactions has focused on traffic stops, and analyses of pedestrian stops are rare. In this paper, we analyze data from 175,000 pedestrian stops by the New York Police Department over a fifteen-month period. We disaggregate stops by police precinct, and compare stop rates by racial and ethnic group controlling for previous race-specific arrest rates. We use hierarchical multilevel models to adjust for precinct-level variability, thus directly addressing the question of geographic heterogeneity that arises in the analysis of pedestrian stops. We find that persons of African and Hispanic descent were stopped more frequently than whites, even after controlling for precinct variability and race-specific estimates of crime participation.

Sunstein and Originalism

One of the Federalist Society events I saw was a debate over originalism between Cass Sunstein and Charles Cooper. Here are Sunstein's thoughts:

Originalism and the Federalist Society
On Saturday, I was at the Federalist Society meetings in Washington, DC, for a lunch-time debate on my new book, Radicals in Robes (inflammatorily and probably unfortunately named, I know). The specific topic was whether originalists are indeed "radicals"; Charles Cooper, a Washington lawyer, spoke in defense of originalism. He and others made a number of good points, of course, but there was a persistent claim that seemed puzzling. The claim was this: Interpretation just IS a matter of attempting to elicit the speaker's intention. Hence originalism, understood as a search for the original intent, follows from the very nature of interpretation.

This claim seemed puzzling for two reasons. First, the most prominent originalists, including Justice Scalia, do not focus on the "speaker's intention"; they focus on the original public meaning. The difference is important, because those who focus on the original public meaning do not need to ask questions about psychology or subjective understandings.

Second, and more fundamentally, there is nothing that interpretation just IS. In interpreting the statements of our friends, of course, we probably do best to try to understand their intentions. But in law, interpretation can be more than one thing. In contract law, we might be concerned with original meaning (though we aren't always concerned with that); in statutory interpretation, we might be concerned with current rather than original meaning (as we sometimes are); in constitutional law, it's a question whether or not we should be concerned with original meaning. * * *

At the debate, Sunstein said something like this: "Would we interpret Hamlet by asking what were Shakespeare's private subjective understandings, or asking what the audience in Shakespeare's day thought? The idea is preposterous." That's a paraphrase, but I know he used the word "preposterous."

Not so quick. If it is preposterous to try to understand what Shakespeare meant by his words or how his audience would have understood those words, how come there are annotated editions of Shakespeare? The whole point of annotated editions is that we all recognize that the meaning of words changes, and that if you want to know what a Shakespeare play was really saying, you have to know how the words and phrases were being used at the time.

For example, when Hamlet says, "I know a hawk from a handsaw," it would be crazy to "interpret" this line in light of modern meanings or understandings. Everyone accepts that the only way you can even hope to understand this line is to examine how the word "handsaw" would have been understood at the time or what Shakespeare likely meant (i.e., a variant on "hernshaw," which meant "heron").

Now, it's certainly true that on a deeper level, different people will perceive different themes or messages in Hamlet. One person reads Hamlet as shedding light on gender relations in Shakespearean England, another reads it as a meditation on death, etc. Two points, though: 1) In none of these cases are people forcing their imputed message on other people, while in the interpretation of the Constitution (or statutes), judges are forcing other people to abide by their interpretation. As a prima facie matter, this suggests to me that judges ought not to feel quite so free to come up with an inventive "interpretation" that reflects mostly on their own subjective understandings. 2) Even as to deeper interpretations of Hamlet, the text and intent still bear a lot of weight. If someone "interpreted" Hamlet as a screed against global warming or as a holy text for worshipping the "Hamlet God," the quite proper response would be, "Your interpretation has no basis either in the text of Hamlet or in Shakespeare's intentions."

Coffee

A sign that American tastebuds are improving: On my trip, I stopped at a truck stop in the middle of Tennessee (somewhere between Nashville and Memphis). Turned out that there were several kinds of coffee available, including Kenyan. I had some, and it was the real thing all right. It had the same fruity finish that is typical of Kenyan coffees.

Trip

In the middle of a very busy two weeks here. I just drove to DC and back in the past week. While I was there, I worked quite a bit; took the DC Bar's ethics class; and managed to catch two sessions at the Federalist Society convention.

A few thoughts and observations:

• My friend Mark Rienzi made a very good point: Why did anyone ever think that it would be a good idea to make cars with the default being that the headlights can stay on without the key in the ignition? For every other electrical system in the car (radio, etc.), you have to turn the key. Why not headlights? Maybe the usual default would be useful if you were stumbling around in the wilderness in the dark, found an unlocked car with no key, and needed to use the headlights to illuminate something. But that extremely unlikely situation has to be overwhelmingly outweighed by all the millions of people who leave their lights on by accident.
  
  
• I saw Judge Raymond Randolph's speech on Friday night. He had kept a copy of an unpublished abortion opinion by Judge Henry Friendly. Randolph had worked on the opinion while he clerked for Friendly in 1970. It would have been the first federal court opinion on abortion, but it was never published because New York revised its abortion laws, thus mooting the case.
  
  Friendly would have found abortion regulation to be constitutional. First, Griswold's invocation of "privacy" was basically irrelevant. It is one thing to say that the marital bedroom should be kept private from governmental investigators, and another thing entirely to say that doctors can perform an operation to kill a fetus. Friendly also made a two-part argument that 1) the Constitution did not enact John Stuart Mill's no-harm libertarianism; 2) even if it did, the state is rationally entitled to consider the harm done to the fetus.
  
  Wow. What a stunning relevation for us law geeks. (See Gail Heriot's comments.) Friendly was (along with Learned Hand) one of the most famous and widely respected American judges of the 20th century. Imagine if he had issued an abortion opinion prior to Roe v. Wade.
  
  
• One motto that I live by is: Drive carefully around 18-wheeler trucks. They're big, they're unwieldy, they don't stop quickly, and they can run you right over if you get in their way.
  
  So, for example, when I see a 18-wheeler in the left lane trying to pass another 18-wheeler, and then an SUV comes whizzing up the interstate, and swerves over into the right lane, passing the first 18-wheeler and then dashing at the last possible second in between the two trucks, with barely an inch to spare, my only thought is: "I hope you are thanking the Lord for every minute of your life, because you've already lived longer than you deserve."
  
  The two biggest no-nos about interstate driving (other than drive on the right side of the road) are: 1) Don't pass a truck on the right, and 2) Don't swerve in front of trucks. That SUV driver managed to violate both at once. All for the sake of saving a few seconds.
  
  On rule number 1: Truckers are generally good drivers, and if a trucker is in the left lane on the interstate, there's no telling when he might decide to move back into the right lane because he's realized that he can't pass the other truck, etc. If you're being sneaky and trying to pass on the right, there's a very good chance that the trucker won't be able to see you, in which case you'll get knocked right off the road. (Better hope you're not driving over a bridge or on a hillside.)
  
  Note: This especially applies if the truck has just passed someone else. What I've seen too many times is that people are too impatient to let the trucker have time to pull back in the right lane (i.e., with enough distance so that he's not cutting off the person he just passed). So as soon as the truck gets a car's-length of space ahead, they dash over into the right lane and pass the truck on the right. Stupid, stupid, stupid. If the trucker just passed somebody, you should know that he's about to get back in the right lane.
  
  As for rule number 2: Don't swerve right in front of a truck and cut him off. If you do that, and then for ANY REASON need to slow down or put on your brakes, the truck won't be able to stop and could easily crush your car.
  
  When I pass a truck, I've started driving a little more strategically. Quite often, some gunner is right on my tail, just waiting for me to pass the truck so that he can keep going down the road at 85-90 miles per hour. So on the one hand, if I pull over too quickly, the gunner is happy, but I just cut off the truck. I view that as a bad outcome all around. On the other hand, if I wait until I'm far ahead of the truck to move back in the right lane: too late. The gunner already seized the chance to pass me on the right, thus cutting off the truck himself. Again, a bad outcome.
  
  So here's what I do: I watch the rear view mirror carefully so that I can see where the gunner is in relation to the truck. I move back over into the right lane right at the moment that his rear bumper pulls past the front of the truck. This is close to ideal: I've delayed getting back in the right lane as long as I can, but not so long that the gunner can cut off the truck himself.
  
  (Do I analyze this too much? Do I think too much about how to force other drivers to drive more safely? Well, somebody has to: Too many people obviously can't think for themselves.)
  
  
• When I was driving within 40 miles or so of Memphis (probably an hour and a half), there was a black radio station (WRBO 103.5) that had a very unusual talk/music show. I've heard lots of radio stations that play music, and lots of talk radio stations, but this was a mix of both. When I first came across the station, the host was interviewing Cathy Cleaver Ruse of the Family Research Council about abortion. After that, he would talk to callers for a few minutes about abortion; then play a song by Alicia Keys; talk to callers about abortion again, then play a song by Rick James. And so on. The host had a funny habit of saying the wrong thing; one time he observed that in the previous hour, he had "lots of women" calling in to say that "life begins at contraception . . . um, I mean, conception."
  
  One caller also was particularly interesting. The host had asked teenagers to weigh in on whether they agreed with parental notification. One 19-year-old said that in her experience, most of the men "getting us pregnant" (not sure what she meant by "us") were friends of her father's, and they "want us to get abortions" because they don't want anyone else (including their wives) to find out that they got a teenager pregnant.

UPDATE: I just remembered reading this very useful (and colorful) post by a trucker bemoaning the poor driving habits of car drivers. It's a classic post that all drivers should read.

Milli Vanilli

I always loved Milli Vanilli. Fab and Rob. The catchy tunes. The funky beats. The dreadlocks. The flashy dance moves, especially the one where they hopped in one place, back and forth, with each leg swinging out directly to the side. (Also a signature move of New Kids on the Block, one of our best American bands). The German accents. Plus, the name: Milli Vanilli. Not quite as impressive as a double name (Duran Duran, Mister Mister), but the alliteration made it so cool.

But it was all about the music. Ah, the music. Thanks to the Internet, you can listen to all of Milli Vanilli's hits and other tracks here. Plus, you can now find videos on YouTube. "Baby, Don't Forget My Number"? Wow, that one had "hit" written all over it. "Girl, I'm Gonna Miss You"? Awesome. And who can forget the pathos of "Blame it on the Rain", written by the inimitable Diane Warren, who has also penned such classics as:

• Starship's "Set the Night to Music"
  
  
• Aerosmith's "I Don't Want to Miss a Thing" (in the world of rock, trust me, you don't get much more "authentic" than Aerosmith)
  
  
• Ace of Base's poignant hit "Don't Turn Around"
  
  
• A bunch of songs for Mariah Carey (back when she used to let loose and sing)
  
  
• Michael Bolton's "When I'm Back on My Feet Again," "Missing You Now," "How Can We Be Lovers," and "Time, Love, and Tenderness." (What ever happened to Michael Bolton, by the way? I was always worried that his throat was going to explode on one of his signature high notes.)

Anyway, what a shocker when it turned out that Milli Vanilli was lip syncing! Not like today's serious musicians (Ashlee Simpson, etc.). Suddenly their career was in shambles. They had to give back the Grammy. (Grammys -- never been the same since.) Hardly anyone bought their followup album. (Fab Morgan, though -- what a trooper. He's still making music, keeping the faith.)

To which I say: What's going on, people?

Imagine if they finally proved that Shakespeare's plays were really written by someone else. (Sir Walter Raleigh, Oliver Cromwell, etc.) Would anyone go around to the schools saying, "Hey, we've got get this so-called 'Hamlet' out of the curriculum! We can't study Hamlet if it wasn't really written by 'Shakespeare.'"

No way. Hamlet is a good play (everybody says), no matter who the author really was. (Vasco da Gama? Not sure of the latest theories here.)

Who cares if "Milli Vanilli" was really a couple of middle-aged American white guys. It was still good music, even if Fab and Rob weren't technically using their own "voices" to "sing."

Milli Vanilli: The Shakespeare of our generation.

Alito's Dissents

Cass Sunstein had a Washington Post op-ed the other day in which he analyzed the cases in which Judge Alito dissented. (He had already presented the results of his study on a radio show, as discussed by Ann Althouse here). Sunstein summarized Alito's dissents like this:

As an appeals court judge, Samuel Alito has compiled a massive record that includes more than 240 opinions. Of these, the most illuminating may well be his 41 dissents -- opinions that he has written by himself, rejecting the views of his colleagues.

When they touch on issues that split people along political lines, Alito's dissents show a remarkable pattern: They are almost uniformly conservative. In the overwhelming majority of cases, he has urged a more conservative position than that of his colleagues. In his dissents, at least, he has been a conservative's conservative -- not always in his reasoning, which tends to be modest, but in his ultimate conclusions.

Sunstein also emailed Ann Althouse (see the post linked above). In his email, he clarified his methodology:

In terms of counting: I looked over 41 dissents (not including the 14 or so concurring and dissenting opinions). Some of them are easy to code in ideological terms; some of them aren't. Somewhere between 13 and 20 are best treated as "neutral," that is, no ideological valence at all. Of those with an ideological valence, somewhere between 100% and 85% are to the majority's right.

So out of 41 dissents, 13 to 20 are "neutral," whatever that means, while the other 21-28 are more identifiable as "conservative." So even assuming that Sunstein's classification is correct, Alito wrote a "conservative" dissent about 1.7 times per year. But as discussed further below, Alito participated in between several hundred and several thousand appellate decisions over his career (depending on how you count the cases). If Alito is supposed to be a radical conservative activist, dissenting a mere 1.7 times per year is a shabby performance. (Surely an activist could have done better than that!)

But Sunstein's analysis already seems to be getting some traction. On meeting Alito, Senator Mark Pryor's reaction included this:

Pryor said he questioned Alito about his dissents in cases that came before his court.

"I did talk to him about the fact that he had so many dissents and what should I make of that," he said. "Should I see that as he is biding his time until he goes up to the U.S. Supreme Court and then he's going to have his way?

Compare Sunstein's analysis to the analysis by a couple of New York Times reporters:

Judge Samuel A. Alito Jr. dissents slightly more often than the typical appeals court judge, and his dissenting opinions are almost always more conservative than the majority's.

In the several hundred cases he heard over 15 years on the United States Court of Appeals for the Third Circuit, Judge Alito dissented more than 60 times, often taking issue with decisions that sided with criminal defendants, prisoners and immigrants.

The first thing that I notice is that the numbers are different. Why did Sunstein find only 41 dissents when the New York Times found over 60? As for the total number of cases, this depends on how you count them. If one searches LEXIS for all cases where Alito was on the panel, LEXIS won't even compute the result, because it is over 3,000. By far, most of those were summary affirmances of the district court's decision. I'm not sure how to search for only the cases with written opinions, but I suspect that the New York Times' figure of "several hundred" is more accurate than Sunstein's figure of 240.

On a different point, while both Sunstein and the New York Times describe Alito's dissents as "conservative," the New York Times' analysis is much more useful and accurate than Sunstein's:

He frequently voted in favor of the government and corporations in these dissents. He generally deferred to what he called the good faith judgments of other participants in the justice system, including police officers, prosecutors, prison wardens, trial judges and juries. He appeared particularly reluctant to order new trials over what he called harmless errors in the presentation of evidence or in jury instructions.

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One theme that runs through Judge Alito's dissents is deference to the views of the people and the agencies closest to the facts and thus, in his view, best situated to make decisions.

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Judge Alito almost always showed reluctance to interfere with a case after a jury had decided it.* * *

If a appeals court judge generally defers to a jury or a district court judge, why is such deference classified as either "conservative" or "liberal"? "Restrained" or "modest" would be a more appropriate word. Sunstein seems to be determining what counts as "conservative" based on a crude caricature of conservatives (who apparently always want free speech claims and plaintiffs to lose) and a crude caricature of the law (in which judges do nothing other than award a "conservative" or "liberal" victory to their preferred side).

The New York Times' analysis is also more accurate in that it discusses counter-examples:

Federal courts hear relatively few personal injury cases, but Judge Alito dissented in four of them. In two, he voted against the injured plaintiff.

For example, after a truck driver lost a products liability trial against the manufacturer of his vehicle, the appeals court majority ordered a new trial, in part on the ground that the trial judge had improperly allowed the jury to hear that the driver was not wearing a seat belt. Judge Alito agreed that was a mistake but said the error was harmless.

But in other injury cases, Judge Alito would have let verdicts stand. In one, a group of doctors sought to have a jury's verdict against them overturned in a lawsuit by the parents of a girl who died as a result of a liver disease.

The doctors argued, Judge Alito wrote, "that they should escape all or part of the liability for their malpractice because the young woman and her parents were foolish to have followed their bad advice. The majority holds that the trial judge should have charged the jury on this defense. In my view, however, there is no evidence that the girl and her parents were negligent. Their only mistake was to trust the defendants' advice, which, although negligent, was not so implausible on its face that lay people should have known better than to have followed it."

Note that in both cases here (assuming that the descriptions are accurate), Alito voted to affirm lower court rulings. In practice, this meant that some of his votes were for the plaintiff and some were for the defendant. It wouldn't be fair to pick out one of these personal injury cases in which Alito found for the defendant, and then to claim that this represents Alito's "conservative" desire to grant defendants a victory.

But that is exactly what Sunstein did. He explicitly lists a personal injury case where Alito said literally nothing other than that he would have affirmed the district court's factual judgment. This is supposed to support Sunstein's thesis that Alito writes "almost uniformly conservative" dissents. But Sunstein doesn't mention the other personal injury cases where Alito voted for the plaintiff. Nor does he explain why it is appropriate to say that these sorts of decisions are either "conservative" or "liberal" when the judge merely takes a deferential view towards the lower court or the jury, whatever it decided.

Finally, another fact not discussed by Sunstein:

The Supreme Court rejected the position set out by Judge Alito in a dissent in an abortion case. But in at least three other cases, it adopted the position advanced in his dissent.

Frank B. Cross, a law professor at the University of Texas who has compiled a database tracking how the Supreme Court reviews appellate decisions, said: "This is the [third] highest of anyone in the database. It shows that when his court took an important and controversial case and got it wrong, from the perspective of the Supreme Court, he identified that and dissented. Indeed, his dissent may have been part of what got the Supreme Court's attention"

Impressive.

Alito's Student Note

The Yale Law Journal has posted Judge Alito's student note from 1974. It concerns the Supreme Court's decisionmaking process in two Establishment Clause cases.

Secret Prisons

The Washington Post recently reported that the CIA has secret prisons in other countries, where it interrogates captured Al Qaeda members. As someone who has regularly watched Alias and 24 and countless movies with similar themes, and who has read books by Tom Clancy, etc., I would have already assumed that the CIA was doing something like this. It's interesting that so much popular culture depicts CIA (or other government) agents interrogating people secretly, etc., as something necessary or even heroic, but that so many people seem to be shocked that something like this really happens.

Even more on "Scalito"

From the Washington Post:

The real Sam Alito, according to the lawyers and other friends who know him well, is more like the second coming of Chief Justice John G. Roberts Jr., but with a longer paper trail. They describe Alito as a studious, diligent, scholarly judge with a first-rate mind and a deadpan sense of humor, a neutral arbiter who does not let personal beliefs affect his legal judgments.

They say he inherited a commitment to unbiased professionalism from his father, who served as the New Jersey legislature's nonpartisan research director for a quarter century. They don't know anyone who isn't a journalist who actually calls him "Scalito."

And yet journalists always attribute the term to other people. Very odd.