Category Archives: Law: Constitutional Law

The Supreme Court finished out its term by Throwing Out a Human Rights Lawsuit, and sending the Child Porn statute back for more consideration of its chilling effects (or not) in light of improvements in filtering technology.

Full text:

• SOSA v. ALVAREZ-MACHAIN
• ASHCROFT v. ACLU

Judging only from the press reports, these are both ominous: It's not good that our government can kidnap people with no fear of civil liability. It's true that there is a diplomatic protest system, but it's very hard for foreign nations to get much from a superpower. Our courts are a greater constraint on our government than diplomats (note: this is only a claim as to relative efficacy, no more).

The Ashcroft v. ACLU 5-4 is going to put a lot of pressure on people to mandate internet architectures that are filtering-friendly. Although they don't have to be privacy-destroying technologies, they tend to be. And that could be quite ugly.

I wish I had time to write more about these decisions (and finish part III of my discussion of yesterday's trifecta), but I have a lot of preparing to do for my Amsterdam trip. I'm sure that the SCOTUS Blog will have lots of info.

If I get very organized, which is dubious, I may queue up an item or two to go online while I'm en route, but generally speaking it's possible blogging may be sparse for the rest of this week. It's certain to be less than the recent furious pace.

Meanwhile I'm waiting for someone to call this court's ducking of some major issues, and picking its shots on others, an exercise of the (I thought discredited?) Bickelian 'Passive Virtues'.

Aaron Swartz, the man who brought blogdom NYT permalinks and cool tools for finding them, presents, When can I keep an enemy combatant?.

This is a lot easier to follow than the pure text kind of analysis.

Now that I've sorta figured out what I think, other takes on today's decisions:

Scrivener's Error,

Like Gaul—or, more the the point, gall—the detainee mess is divided into three parts. One division is the obvious one: Hamdi (PDF, 822kb), Padilla (PDF, 517kb), and Rasul (PDF, 520kb). That's certainly the way the three decisions will be divided in the media. However, there is a much more logical and important division into three parts: civil procedure, government power, and military necessity. Just to be different, that's how I'm dividing things. I also think it gives some interesting perspectives on exactly what was going on.

Lots at SCOTUS Blog

Greg Goelzhauser, Did Congress authorize indefinite detention?

Marstonalia on Hamdi

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.

Legal Theory Blog has a round-up of the votes and other comments.

Update: Read Balkin