Does The Spread Offense Violate The Constitution?

Is the comment board of a Michigan football blog a secret bastion of sophisticated jurisprudential debate? And you're surprised by this?

Scalia v. The English Language

This is why people adore lawyers.

Today's majority opinion in Entergy, Inc. v. Riverkeeper, Inc., No. 07-588,* contains the following sentence penned by Justice Scalia: "But minimize is a term of degree and is not necessarily used to refer exclusively to the 'greatest possible reduction.'" Page 11 (emphasis supplied).

This stinks a little bit of something, doesn't it? Justice Scalia gets some help from one online dictionary. Not so much from two others. The problem really is that "reduce" and "minimize" don't actually mean the same thing. Would our friends on the right be happier if Sarah Palin said "Gosh darn it, I will reduce your taxes!" or if she said "Doggone it, I'm gonna minimize your taxes!"? Can we stipulate that the John Galts of the world would be more pleased in the second scenario? And isn't insisting that "minimize" doesn't refer to "the greatest possible reduction" a little, well, tricky?

*For more on this case, check out Scotusblog's typically excellent analysis here.

Some Of My Best Friends Are Supreme Court Justices*

What of Rep. Barney Frank's assertion that U.S. Supreme Court Justice Antonin Scalia is a "homophobe"? This may have been impolitic.** It may have been rude.*** But let's look at the data.

Here's what Justice Scalia said in his dissent in Romer v. Evans:

"This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that 'animosity' toward homosexuality . . . is evil. I vigorously dissent."

And:

"Amendment 2 is designed to prevent piecemeal deterioration of the sexual morality favored by a majority of Coloradans, and is not only an appropriate means to that legitimate end, but a means that Americans have employed before."

What was Amendment 2? It basically said that no city or town could pass legislation protecting gays and lesbians from discrimination.

Well, we've all said things we regret. But Justice Scalia doesn't regret a single morsel of what he said in Romer v. Evans. So a few years later, in Lawrence v. Texas, he said:

"Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct."

Are these the words of a homophobe? Justice Scalia has at least one prominent conservative defender. But as of right now, most of the conservative corners of the blogosphere are so outraged by Rep. Frank's comment that they haven't even weighed in on it.

UPDATE (8:45 a.m.): Not quite outrage, but some typical pseudo-agnostic snark from the Instapundit.

UPDATE (10:14 a.m.): This, from the Corner, approaches outrage, but not head-on.

*Not really. That might be cool, though.

**No way. Barney Frank said something impolitic?

***See ** above.

Divergent Dissents

Another majority opinion in a 5-4 (actually, 5 to 3 to 1) case by Justice Kennedy today in Dada v. Mukasey, USSC No. 06-1181. And another opinion in which the interesting action is found in the dissents.

The case presents a relatively complex immigration law question. This blog doesn't discuss immigration law all that often, for the obvious reason that its author doesn't want to look any more stupid than he looks already. In any event, the issue, stated simply, was whether an alien could back away from a promise to leave our fine country voluntarily so that he could challenge immigration authorities' order that he leave with the Board of Immigration Appeals.

Stripped to the crass essentials -- a particular strength of this little blog -- the question was whether you wanted to give an illegal immigrant another shot or hold him to his promise to leave. Justice Kennedy (and the others who you'd expect) decided to give him another shot. Justice Scalia (and the others who you'd expect) dissented and said that the petitioner should have kept his promise and gotten the heck out of here.

Except for Justice Alito. He chose a middle ground, which you may want to keep in mind. His conclusion was that both the majority and the dissent were wrong. Justice Alito said that the Board of Immigration Appeals didn't think it could give the alien another shot, but it could have if it had wanted to (though it didn't have to). He would have sent the case back so that the Board could figure it out. This frustrated Justice Scalia enough that he put a gratuitous footnote at the end of his dissent tweaking Justice Alito a tiny bit. Again, something you may want to keep in mind.

History Shall Not Absolve Him

Today, in Boumediene v. Bush, USSC No. 06-1195, the United States Supreme Court held that enemy combatants held at Guantanamo Bay can employ the constitutional privilege of habeas corpus to challenge their detention there in the federal court system. The privilege of habeas corpus is pretty significant: it was one of the only individual rights enumerated in the Constitution before the states ratified the Bill of Rights. Justice Kennedy's majority opinion is long.

The real fun in this case can be found in the breathless dissents. Justice Scalia's* dissent is the most breathless of all, maybe the most breathless dissent in the history of the Court. He closes with a bang: "The Nation will live to regret what the Court has done today." Ominous.

You just have to wonder about what would motivate him to write that sentence. What has the Court done today? Affirmed the importance of an individual right enumerated in the Magna freaking Carta, that's what. Rejected an incredible argument by the worst President in modern American history that the habeas privilege doesn't apply at Gitmo because Gitmo isn't technically America -- even though Gitmo is under America's complete control.

Jeez.

You just have to wonder: is there any act at all that the Republic could take in the name of the war on terror that Justice Scalia would reject? Other than, of course, confiscating our guns?

*Stipulation: Justice Scalia is way, way, way smarter than the humble author of this little blog.

Eh?

There's a lot here that's defensible. But the idea that Bush v. Gore was not a political decision is based either on dishonesty, delusion, or some blinder-inducing cocktail that combines the two.*

*This thought violates the Eleventh Commandment of Legal Academia and Appellate Commentary ("Thou shalt not criticize Scalia"), which is fine. Let's stipulate that Justice Scalia is way, way smart. But (thus?) pretty much every single opinion he writes includes some degree of prestidigitation. And rather than admire that prestidigitation as part of academic intellectual calisthenics, shouldn't we call it out? At least every now and then?