Decisionism Flashes Back

See, I was planning to make my next post about why I've stopped blogging.* But then Judge Tauro did his thing and Judge Walker did his and now I can't resist linking to some early thoughts I had on all of this.

One thing to watch for here is what I hereby dub the "Reverse Cocktail Party Effect". Recall that one stubborn response to instances in which Justice O'Connor or Justice Kennedy strayed from the conservative line in individual rights cases has been that they just want to keep getting invited to Washington cocktail parties. In this vein, keep your eyes peeled for enlightened right-leaning legal thinkers expressing support for equal marriage rights but furrowing their brows at application of the rational basis test to denial of those rights.

*Other than abject laziness, of course.

Put That In Your Musket And Shoot It!

As noted on Universal Hub, today in Commonwealth v. Runyan, No. SJC-10480, the Supreme Judicial Court held (i) that the Second Amendment does not apply to the states; and (ii) that even if it did, requiring people to lock up their guns would still pass constitutional muster. The former issue is currently under intense consideration in the United States Supreme Court. For much more on that, the best place to go is here.

As for the latter issue, Justice Gants makes what appears to be an unassailable point in footnote 8:

We also note that, even if a firearm were secured in the manner required by G.L. c. 140, § 131L (a ), a gun owner threatened in his or her home today would be able to fire the weapon in self-defense at least as quickly as would a gun owner in 1791, when the Second Amendment was adopted. At that time, laws were in effect requiring that gunpowder be stored separately from firearms, which meant that a law-abiding homeowner acting in self-defense would need time to load and fire a musket or flintlock pistol. See Heller, supra at 2849-2850 (Breyer, J., dissenting). A skilled soldier of that time using specially prepared cartridges required a minimum of fifteen to twenty seconds to load and fire a musket; a less skilled soldier could fire no more quickly than once per minute. Hicks, United States Military Shoulder Arms, 1795-1935, 1 Am. Military Hist. Found. 23, 30-31 (1937). A gun owner today could remove a firearm from a locked container or release a trigger lock more quickly than that.

If you're going to be an originalist, you'd better be prepared to deal with the consequences.*

*I predict without fear that the usual suspects will try with all their might to puncture Mr. Hicks's "once per minute" datum. (The good thing about this prediction is that I'll even be happy if I'm wrong . . . .)

For The Record: I Am Opposed To Death By Stoning

This morning's New York Times featured another article about Eric Holder's decision to try Khalid Sheikh Mohammed in a civilian court. It's a nice companion to Jane Mayer's piece last week in the New Yorker. Both discuss at length the political tempest in which Mr. Holder now finds himself.

And yeah, duh, it's bad politics.* But I don't want to talk about that. What interests me is the totally crass and craven nature of the opposition to trying KSM in the Southern District of New York. As Mayer's comprehensive piece points out, Holder's investigators have been able to cobble together a much stronger and more compelling case than anything that been extracted by, uh, different means from KSM at Gitmo or elsewhere. And Mayer also describes the downright ineffectual nature of the military commissions that people like Lindsay Graham seem to love so much. You want to convict? You want a tough sentence? Yes? The same military commissions that just released Osama Bin Laden's driver and sent him to Yemen (yes, Yemen)? Okay. Who's soft on terror again?

I have not seen a single legal or tactical argument against a criminal trial for KSM that has any merit whatsoever. If you've seen one, send it to me.

One last thing. If the administration really wanted to play a smart game of politics,** they'd announce that there will be no trial for Khalid Sheikh Mohammed. They'd call a press conference and announce that sometime this Spring they'll tie KSM up to a post at Ground Zero and let the 9/11 families stone him to death. That would be super popular.

I really hope that the next member of the press who interviews Lindsay Graham or Scott Brown or, heck, Rahm Emanuel asks a simple question:

Do you support death by stoning for Khalid Sheikh Mohammed without a trial?

*Which makes the administration's lack of political groundwork for the decision pretty disappointing.

**When I said I didn't want to talk about politics, I lied.

Reporters Left Hanging

Adam Gaffin at Universal Hub and Dan Kennedy* each report today on the SJC's decision in Fustolo v. Hollander, SJC No. 10485. If you've spent time with me, or read this blog, you probably know that I have a genetic inclination toward a broad interpretation of the First Amendment, especially as it relates to the press. But the decision in the Fustolo case feels right to me.

The issue in the case is whether a person who writes an objective news story is petitioning the government. If she is, the case against her would probably be dismissed in its earliest stages and she would be awarded her attorneys' fees. I agree that the statute is not as artfully crafted as we might like it to be. Especially on this front. But it protects petitioning. A reporter who objectively provides citizens with information about an issue of public concern is performing a valuable service in our democracy. She may be providing information that others use to petition. But she's not petitioning. Which is what the statute protects.

So the most important sentence in the opinion, to me, pops up early on: "she expressly stated in her affidavit that in writing all her articles, she was 'always careful to present an objective description of the subject matter, including the positions of both sides where applicable,' and that while she had personal views on the issues she covered, 'they were not reflected in the articles I wrote.'"

Again: not petitioning. No matter what you think of the plaintiff, no matter what you think of the press, if you're not presenting personal views you just aren't petitioning.

*I can't resist noting that Mr. Kennedy links in his post to an affidavit that he was paid, presumably by Ms. Hollander to the submit to the Court. As with just about everything he writes, it's persuasive and beautifully written. But I'm not so sure it's a particularly helpful document to file in a civil dispute to which he's not a party.

At Least They Had Good Seats For The Speech

It was a dramatic moment, wasn't it? With a handful of the justices seated immediately before him, the President criticized the recent Citizens United decision. Supposedly, though I didn't see it, Justice Alito shook his head and said "That's not right." I haven't read any of the commentary on this yet. But let me make the following assumption: right-leaning legal thinkers are comparing this to court-packing and all manner of other evils. Left-leaning legal thinkers are saying that there's nothing wrong with shining a light on an institution that is almost completely unaccountable for the work it does.

My immediate reaction was guilty pleasure. I liked the fact that Justice Roberts, Justice Kennedy, and Justice Alito were called out in the most public setting possible by someone who commands respect. And for the second time in a couple of days, no less.

Now I haven't read all or even most of Citizens United. I suspect that it's based on a justifiable reading of the First Amendment. I'm quite certain it puts yet another nail in the coffin of conservative hand-wringing about judicial activism. To the extent there's even room for another nail anyway.

But what if it had been another president up there on the dais? The last one, for example. And what if instead of criticizing Citizens United, he'd been criticizing the decision in Lawrence v. Texas? I think I would have been less happy about that. But I think I would have been wrong.

It is now commonly accepted that presidents are going to appoint justices who share similar political philosophies. How does this President's criticism of a controversial decision differ from his predecessor's appointment of two extremely conservative justices in a clear effort to push the Court further to the right? It really doesn't. Both are public acts. Both have in mind political goals. So why are conservatives (probably)* so upset this morning? Because they lost the White House. They might get it back in a few years. They might not. But that's what's really going on here.

*Again, I haven't read a word about this yet.

SJC Tackles Fee Application; Subtle Sausage-Like Aroma Sniffed At Adams Courthouse

If you litigate, chances are that at some point in your career you'll submit to a court (or oppose) an application for attorneys' fees. If you do business, chances are that some point you'll have to retain an attorney to fight like pit bull on your behalf. Either way, you should take a few minutes and read Haddad v. Wal-Mart Stores, Inc., SJC No. 10261A., decided last week.

It's all here: how competent and careful attorneys bill their time, the degree of attention with which lawyers pick over bills submitted by their prevailing opponents, how courts do their best to reach rough justice and make both sides feel like they've won (or lost). After reading it, you may feel like you need to take a shower. Or, if you're like me, you might revel for a moment in the messiness of our very public legal system.

Some Thoughts On Martha Coakley

In the middle of October, I received a call from a reporter for a major local publication. He had seen this post and seemed to expect that I would have bad things to say about Martha Coakley, who at that point had not yet won the primary election. Coakley, remember, had a rough time when she argued in front of the Supreme Court, at one point not knowing the answer to a predictable question and at another misstating the record and being corrected by the Chief Justice.

I was reluctant to criticize the Attorney General, in part due to cowardice and in part because arguing in front of any appellate panel is an immensely difficult skill to master. Much less the United States Supreme Court. So I wouldn't give this reporter the juicy quote he unabashedly sought and he moved on.

But I had misgivings. The Attorney General's performance before the Supreme Court was a signal that something was amiss. Perhaps it was a lack of diligence. Or an inability to engage in complex strategic thinking. Perhaps it was a lack of respect for an important institution. Or all three. Or something else. Whatever it was, I was spooked. My vote in the primary reflected that.

There are smarter, snarkier, more eloquent folks than me spilling bytes and barrels of ink about HOW ON EARTH THIS HAPPENED. It could have been a wave (maybe) or sexism (maybe) or tepid support from the party (er, probably not). I find myself returning to that Supreme Court argument. You don't back into a seat in the United States Senate. If you don't work for it -- I mean put every ounce of your being into it -- and you don't understand the strategic significance of looking like you're not working for it, people are going to think that you don't respect them and vote for the candidate who *is* working hard. Which seems to be what happened.

As for Scott Brown, well, he's to be congratulated. I can't restrain myself from providing one word of unsolicited advice to our new Senator: you probably don't want to join Jim DeMint and Tom Coburn's Ayn Rand book club or anything. You are, after all, a Senator from Massachusetts, not Oklahoma. You'll want to have that in mind as you make your way.