Justice Scalia: “I don’t know even what it is . . . I’ve heard it talked about”

Justice Breyer: “remember when they had that disturbance in Iran . . . there were some Twitters as I call them . . . but there were people there with photos as it went on . . . it’s instant and people react instantly . . . it’s not something that’s going to go away”

Well, at least they didn’t call it a series of tubes.

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• Just(ice) Desserts
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Now that the sex lives of Supreme Court justices have become grist for commentators, we are finally free to discuss a question formerly only whispered about in the shadows: Why does Justice Antonin Scalia, by common consent the leading intellectual force on the Court, have nine children? Is this normal? Or should I say “normal,” as some people choose to define it? Can he represent the views of ordinary Americans when he practices such a minority lifestyle? After all, having nine children is far more unusual in this country than, say, being a lesbian.

Let me be clear: the issue is not the fact that Scalia has chosen to have nine children. That is his personal business. The question is whether he is an extremist advocate of the so-called “Nine Children Agenda.” Can he deal open-mindedly with children’s issues when he has so many himself? Can he persuade his children to recuse themselves when appropriate (or, in the vernacular, “Just shut up, will you? I’m trying to write an opinion here.  Sweetheart, could you please come and take him…stop climbing up my leg…watch it with that glass of water, buddy…no, that’s some condemned prisoner’s brief that daddy has to reject, so don’t …would somebody please take this kid…LOOK OUT for the… Jesus H. Christ, how am I supposed to get any work done”?).

Speculation is already rampant about why Scalia chose nine children over a more conventional lifestyle. Is he a sex maniac?

—Michael Kinsley

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WASHINGTON (AP) — The Supreme Court ruled Monday that federal officials can indefinitely hold inmates considered ‘’sexually dangerous” after their prison terms are complete.

The high court in a 7-2 judgment reversed a lower court decision that said Congress overstepped its authority in allowing indefinite detentions of considered ‘’sexually dangerous.”

”The statute is a ‘necessary and proper’ means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others,” said Justice Stephen Breyer, writing the majority opinion.

President George W. Bush in 2006 signed the Adam Walsh Child Protection and Safety Act, which authorized the civil commitment of sexually dangerous federal inmates.

The act, named after the son of ”America’s Most Wanted” television host John Walsh, was challenged by four men who served prison terms ranging from three to eight years for possession of child pornography or sexual abuse of a minor. Their confinement was supposed to end more than two years ago, but prison officials said there would be a risk of sexually violent conduct or child molestation if they were released.

It was a 7-2 ruling, and the two dissenters were Antonin Scalia and Clarence Thomas, who stated in a dissent authored by Thomas:

“As every schoolchild learns, our Constitution estab-lishes a system of dual sovereignty between the States and the Federal Government.” Gregory v. Ashcroft, 501 U. S. 452, 457 (1991). In our system, the Federal Government’s powers are enumerated, and hence limited. See, e.g., McCulloch v. Maryland, 4 Wheat. 316, 405 (1819) (“Thisgovernment is acknowledged by all to be one of enumer-ated powers”). Thus, Congress has no power to act unless the Constitution authorizes it to do so. United States v. Morrison, 529 U. S. 598, 607 (2000) (“Every law enacted by Congress must be based on one or more of its powers enumerated in the Constitution”). The States, in turn, are free to exercise all powers that the Constitution does notwithhold from them. Amdt. 10 (“The powers not delegated to the United States by the Constitution, nor prohibited byit to the States, are reserved to the States respectively, or to the people”).1 This constitutional structure establishes different default rules for Congress and the States: Con-gress’ powers are “few and defined,” while those thatbelong to the States “remain . . . numerous and indefinite.” The Federalist No. 45, p. 328 (B. Wright ed. 1961) (J. Madison).

The Constitution plainly sets forth the “few and defined”powers that Congress may exercise. Article I “vest[s]” inCongress “[a]ll legislative Powers herein granted,” §1, and carefully enumerates those powers in §8. The final clause of §8, the Necessary and Proper Clause, authorizes Con-gress “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in theGovernment of the United States, or in any Department or Officer thereof.” Art. I, §8, cl. 18. As the Clause’s place-ment at the end of §8 indicates, the “foregoing Powers” are those granted to Congress in the preceding clauses of thatsection. The “other Powers” to which the Clause refers are those “vested” in Congress and the other branches byother specific provisions of the Constitution.

(…)

No enumerated power in Article I, §8, expressly dele-gates to Congress the power to enact a civil-commitmentregime for sexually dangerous persons, nor does any other provision in the Constitution vest Congress or the other branches of the Federal Government with such a power.Accordingly, §4248 can be a valid exercise of congressionalauthority only if it is “necessary and proper for carrying into Execution” one or more of those federal powers actu-ally enumerated in the Constitution.

Section 4248 does not fall within any of those powers. The Government identifies no specific enumerated power or powers as a constitutional predicate for §4248, and none are readily discernable. Indeed, not even the Commerce Clause—the enumerated power this Court has interpretedmost expansively, see, e.g., NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 37 (1937)—can justify federal civildetention of sex offenders. Under the Court’s precedents,Congress may not regulate noneconomic activity (such assexual violence) based solely on the effect such activitymay have, in individual cases or in the aggregate, on interstate commerce. Morrison, 529 U. S., at 617–618; United States v. Lopez, 514 U. S. 549, 563–567 (1995).That limitation forecloses any claim that §4248 carries into execution Congress’ Commerce Clause power, and the Government has never argued otherwise, see Tr. of OralArg. 21–22.

The dissent goes on to rip to shreds much of the majority opinion, based solely on the simple fact that the Constitution simply doesn’t authorize Congress to do this.

There’s another point that’s worth mentioning, and it’s this. Traditionally, criminal punishment and incarceration have been based on the the idea that you do your time, and then you go free. The men at issue in this case were convicted and sentenced to limited terms in prison. They served that time. Quite honestly, I fail to see what right the state has to continue to hold them unless there is evidence that they are criminally insane — and if that’s the case then it’s doubtful that they should have been imprisoned to begin with.

It’s a dangerous precedent, I think. If the state can indefinitely detain these men because of their supposed danger to society, then who can’t they detain ?

Below the fold, you’ll find the whole opinion, including Thomas’s dissent, which deserves to be read if only to prove once again that the man is not what his critics claim him to be:

United States v. Comstock 08-1224

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How did the White House learn that Solicitor General Elena Kagan is straight?

A White House official tells ABC News that “Solicitor General Kagan volunteered the information to the White House when media reports surfaced in the pre-nomination process for the Supreme Court.”

This was on April 11 after conservative blogger Ben Domenech wrote at the New Ledger and at CBSNews.com that “Kagan is apparently still closeted – odd, because her female partner is rather well known in Harvard circles.”

The White House protested, saying the claim was untrue, and CBSNews.com pulled the blog post. Domenech apologized for passing on what he “erroneously believed” to be true.

This does not quite explain what the Washington Post’s Karen Tumulty reported this morning: that former White House communications director Anita Dunn told her about Kagan sharing the information after the White House directly asked her during the vetting process a year ago for her Solicitor General position.

Can we move on to another issue now please ?

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[O]f the last seven justices nominated by Democrats JFK, LBJ, Bill Clinton and Barack Obama, one was black, Marshall; one was Puerto Rican, Sonia Sotomayor. The other five were Jews: Arthur Goldberg, Abe Fortas, Ruth Bader Ginsberg, Stephen Breyer and Elena Kagan.

If Kagan is confirmed, Jews, who represent less than 2 percent of the U.S. population, will have 33 percent of the Supreme Court seats.

Is this the Democrats’ idea of diversity?

Buchanan doesn’t mention, of course, that six of the last seven Justices appointed by Republicans were Catholics, and that, after Kagan’s confirmation, Catholics will represent 66% of the makeup of the Supreme Court even though they only represent less than one-quarter of the American population.

Is that the Republican’s idea of diversity, Mr. Buchanan ?

This isn’t really surprising. Buchanan pretty much said the same thing last year during the Sotomayor hearings:

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That was a few months before he argued that World War II was Poland’s fault for not surrendering to Hitler’s invading tanks.

And, as David Weigel notes, this is not Buchanan’s first foray into “diversity” on the bench:

Buchanan has been clamoring for more whites to get Supreme Court seats for four decades, and in 1971 he wrote this in a memo to President Richard Nixon.

Italian Americans, unlike blacks, have never had a Supreme Court member — they are deeply concerned with their “criminal” image; they do not dislike the President. Give those fellows the “Jewish seat” or the “black seat” on the Court when it becomes available.

The court now has two Italian American members, so Buchanan revisits his obsession to make a tiresome argument — that Obama is passing over theoretically qualified white candidates and that, hint hint, this provides an opening for conservatives.

Pat. I think your antisemitism is showing, again.

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• The Final Word On Elena Kagan’s Sexuality

The only thing I learned from this video is that Pat Buchanan thinks he has very reliably GayDar.

Not that there’s anything wrong with that.

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There have been rumors about Elena Kagan’s personal life ever since her name first surfaced as the front-runner for the Supreme Court, and now the far-right American Family Association is demanding that she answer them:

Speculation continues to swirl about the sexual preference of likely Supreme Court nominee Elena Kagan. She is apparently out to her friends and others in her academic and social circles, but not out to the public at large.

The White House has flatly stated that she is not gay, which could prove a tad embarrassing if the open secret of her lesbianism is confirmed at some point. If she’s a lesbian, it is going to become public knowledge, and the White House will simply have some more egg on its already yoke-splattered face.

Elena Kagan, if nominated today, will be forced to face the press. She cannot be kept closeted not only from the public but from the inquiring minds of the media. They have a solemn responsibility to do one thing: ask her directly and openly and in front of the American people: Are you a lesbian?

A refusal to answer is a tacit admission of guilt. But she may not be able publicly to deny she’s a lesbian, likely because it’s true. She may not be able to admit it either, because it could cost her a Supreme Court post. So she’s likely to refuse to answer the question at all, and the only plausible explanation for her evasion would be because rumors of her lesbianism aren’t rumors at all but based in fact.

(…)

One qualification for public office is personal character, and nothing speaks to character more than the choices one makes when it comes to sexual conduct. Bill Clinton convinced an entire generation of America’s youth that oral sex isn’t really sex, and as a result we’ve seen an explosion among millenials in cancers of the throat and head caused by the HPV virus, which is spread through oral-genital contact.

It’s time we got over the myth that what a public servant does in his private life is of no consequence. We cannot afford to have another sexually abnormal individual in a position of important civic responsibility, especially when that individual could become one of nine votes in an out of control oligarchy that constantly usurps constitutional prerogatives to unethically and illegally legislate for 300 million Americans.

The stakes are too high. Social conservatives must rise up as one and say no lesbian is qualified to sit on the Supreme Court. Will they?

Now that you’ve told them their bigotry is a legitimate political issue, they are sure to.

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WASHINGTON — President Obama will nominate Solicitor General Elena Kagan as the nation’s 112th justice, choosing his own chief advocate before the Supreme Court to join it in ruling on cases critical to his view of the country’s future, Democrats close to the White House said Sunday.

After a monthlong search, Mr. Obama informed Ms. Kagan and his advisers on Sunday of his choice to succeed the retiring Justice John Paul Stevens. He plans to announce the nomination at 10 a.m. Monday in the East Room of the White House with Ms. Kagan by his side, said the Democrats, who insisted on anonymity to discuss the decision before it was formally made public.

In settling on Ms. Kagan, the president chose a well-regarded 50-year-old lawyer who served as a staff member in all three branches of government and was the first woman to be dean of Harvard Law School. If confirmed, she would be the youngest member and the third woman on the current court, but the first justice in nearly four decades without any prior judicial experience.

That lack of time on the bench may both help and hurt her confirmation prospects, allowing critics to question whether she is truly qualified while denying them a lengthy judicial paper trail filled with ammunition for attacks. As solicitor general, Ms. Kagan has represented the government before the Supreme Court for the past year, but her own views are to a large extent a matter of supposition.

Perhaps as a result, some on both sides of the ideological aisle are suspicious of her. Liberals dislike her support for strong executive power and her outreach to conservatives while running the law school. Activists on the right have attacked her for briefly barring military recruiters from a campus facility because the ban on openly gay men and lesbians serving in the military violated the school’s anti-discrimination policy.

Replacing Justice Stevens with Ms. Kagan presumably would not alter the broad ideological balance on the court, but her relative youth means that she could have an influence on the court for decades to come, underscoring the stakes involved.

Interestingly, some of the most negative immediate reaction to the pick is coming from the left.

Back on April 13th, Glenn Greenwald expressed concern about her stance on civil liberties and Executive power issues:

The prospect that Stevens will be replaced by Elena Kagan has led to the growing perception that Barack Obama will actually take a Supreme Court dominated by Justices Scalia (Reagan), Thomas (Bush 41), Roberts (Bush 43), Alito (Bush 43) and Kennedy (Reagan) and move it further to the Right. Joe Lieberman went on Fox News this weekend to celebrate the prospect that “President Obama may nominate someone in fact who makes the Court slightly less liberal,” while The Washington Post’s Ruth Marcus predicted:  ”The court that convenes on the first Monday in October is apt to be more conservative than the one we have now.”  Last Friday, I made the same argument:   that replacing Stevens with Kagan risks moving the Court to the Right, perhaps substantially to the Right (by ”the Right,” I mean:  closer to the Bush/Cheney vision of Government and the Thomas/Scalia approach to executive power and law).

And Paul Campos raises the spectre of Harriet Meirs:

Yesterday, I read everything Elena Kagan has ever published. It didn’t take long: in the nearly 20 years since Kagan became a law professor, she’s published very little academic scholarship—three law review articles, along with a couple of shorter essays and two brief book reviews. Somehow, Kagan got tenure at Chicago in 1995 on the basis of a single article in The Supreme Court Review—a scholarly journal edited by Chicago’s own faculty—and a short essay in the school’s law review. She then worked in the Clinton administration for several years before joining Harvard as a visiting professor of law in 1999. While there she published two articles, but since receiving tenure from Harvard in 2001 (and becoming dean of the law school in 2003) she has published nothing. (While it’s true law school deans often do little scholarly writing during their terms, Kagan is remarkable both for how little she did in the dozen years prior to becoming Harvard’s dean, and for never having written anything intended for a more general audience, either before or after taking that position.)

Kagan’s handful of publications touch on topics like regulating offensive speech, analyzing legislative motivations for speech regulations, and evaluating the process of administrative law-making. But on the vast majority of issues before the Court, Kagan has no stated opinion. Her scholarship provides no clues regarding how she would rule on such crucial contemporary issues as the scope of the president’s power in wartime, the legality of torture, or the ability of Congress to rein in campaign spending by corporations. (Of course cynics have noted that today Supreme Court nominees are often better off not having an extensive “paper trail” regarding their views on controversial legal issues. Who would have guessed it would be possible to retain this virtue while obtaining tenure at two of the nation’s top law schools?)

Brian Kirwin makes the same argument from the right:

shouldn’t a Supreme Court Justice really have been a judge somewhere? Sometime? Shouldn’t a Justice make a decision tougher than white or red wine before a lifetime appointment to the highest court in the land?

Shouldn’t we have some hint of judicial temperament, application of law, and constitutional view other than what they won’t say under oath in a Senate confirmation?

All we’re left with is she’s unmarried, has no children, and attacked the military’s policy on gays by barring military recruiters from Harvard.

Elections can be won by anybody. Lifetime judicial appointments to the Supreme Court shouldn’t go to rookies who never served a day in their lives on the bench.

Of course, the Constitution does not require judicial experience, it doesn’t even require that a nominee be an attorney, and, as I noted over at Outside the Beltway, there are plenty of examples from history of Justices without judicial experience who’ve gone on to have distinguished careers.

Nonetheless, I expect that this is an issue the right will jump on rather quickly, along with the controversy over military recuiters that erupted while she was at Harvard and, unfortunately, the rumors about her sexuality. In the post-Bork era, that’s all on the table, and this is an election year.

Hold on to your hats.

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- Look for President Obama to name his Supreme Court pick Monday, and look for it to be Solicitor General Elena Kagan, a former Harvard Law dean. The pick isn’t official, but top White House aides will be shocked if it’s otherwise. Kagan’s relative youth (50) is a huge asset for the lifetime post. And President Obama considers her to be a persuasive, fearless advocate who would serve as an intellectual counterweight to Chief Justice Roberts and Justice Scalia, and could lure swing Justice Kennedy into some coalitions The West Wing may leak the pick to AP’s Ben Feller on the later side Sunday, then confirm it for others for morning editions. For now, aides say POTUS hasn’t decided, to their knowledge

If that happens, it will be interesting to see what the members of the Senate Judiciary Committee have to say about these comments that Kagan made about 15 years ago:

In 1995, after spending time as a staff lawyer on the judiciary committee during the nomination of Justice Ruth Bader Ginsburg, Kagan made clear her frustrations: “When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce.”

Kagan’s opinion appears in a 1995 book review of “The Confirmation Mess” by Stephen Carter. In her lively and at times humorous piece, Kagan takes issue with Carter’s 1995 thesis that the process has broken down, in part, because Senators are too focused on getting candidates to reveal their views on important legal issues.

(…)

Kagan wrote that the last truly substantive hearing was that of Reagan nominee Robert H. Bork, who failed in 1987 to get Senate support for his nomination to the high court. Many felt that Bork was in part to blame for his failure as a nominee because he answered so many questions about his legal philosophies that Senators were more easily able to oppose him.

“The Bork hearings were the last hearings where a nominee was able to engage the Senators,” said David Yalof, a political science professor at the University of Connecticut. “But Bork lost. Candidates since have followed the anti-Bork blueprint. The Souter blueprint if you will: say as little as possible without the appearance of stonewalling and you will be successfully confirmed.”

Kagan argues that the Bork hearing should be a “model” for all others, because even though it ended in the candidate’s rejection, the hearings presented an opportunity for the Senate and the nominee to engage on controversial issues and educate the public.

“The real ‘confirmation mess’ ” she wrote, “is the gap that has opened between the Bork hearings and all others.”

“Not since Bork,” she said, “has any nominee candidly discussed, or felt a need to discuss, his or her views and philosophy.”

“The debate focused not on trivialities,” she wrote, but on essentials: “the understanding of the Constitution that the nominee would carry with him to the Court.”

Kagan is right that the confirmation hearings have turned into little more than political posturing, but she’s gets it wrong in not realizing that it was, in fact, the Bork hearings, and only a few years later, the Thomas hearings, that pretty much guaranteed that the Supreme Court nomination hearings would never deal with real substance again.

Thanks to over-reaching by the Democrats, and outright smear campaigns, the lesson that nominees, and subsequent Administrations, have taken from those disasters was to say as little of substance as possible. On the other side of the aisle, Senators of both parties learned from Ted Kennedy and Joe Biden that it is more advantageous to use the nomination hearings as an opportunity for political grandstanding, than as an opportunity for discussions of important Constitutional issues.

If she is indeed the nominee, Kagan will learn this lesson fairly quickly.

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If you’ve ever been to the United States Supreme Court building you’ve undoubtably taken the walk up the marble steps and through the massive bronze doors at the entrance.

Well, soon those historic doors will be closed:

The Supreme Court is permanently closing its massive, bronze front doors to the public, citing security risks.

The court announced Monday that visitors to the high court will no longer climb the 44 marble steps that lead to its great hall and courtroom, and cross the threshold under the famous words “Equal Justice Under Law.” Instead, visitors will enter the building on the plaza level for security checks. They still may exit the building through the front doors.

“The new entrance, which will serve as the primary means for public entry, was designed in light of findings and recommendations from two independent security studies conducted in 2001 and 2009,” the court said in a news release. “The entrance provides a secure, reinforced area to screen for weapons, explosives, and chemical and biological hazards.”

The new procedures begin Tuesday.

At least two Justices are not happy:

Justices Stephen G. Breyer and Ruth Bader Ginsburg dissented from the court’s decision.

“The significance of the Court’s front entrance extends beyond its design and function,” Breyer wrote in a statement joined by Ginsburg. “Writers and artists regularly use the steps to represent the ideal that anyone in this country may obtain meaningful justice through application to this Court. And the steps appear in countless photographs commemorating famous arguments or other moments of historical importance.

“In short, time has proven the success of Gilbert’s vision: To many members of the public, this Court’s main entrance and front steps are not only a means to, but also a metaphor for, access to the Court itself.”

They have a point, I suppose. There is a symbolic value to those open doors, bu this decision seems to be just another symbol of the world we now live in like the closing of Pennsylvania Avenue and the prevalence of security cameras in Washington, New York, and other major cities. If it was recommended by those in charge of security for the building, it’s not surprising that most of the Justices would go along with it.

The Supreme Court’s website describes the doors like this:

One can enter the building through the opened bronze doors of the west front, each of which weighs six and one-half tons and slides into a wall recess when open. The door panels, sculpted by John Donnelly, Jr., depict historic scenes in the development of law: the trial scene from the shield of Achilles, as described in the Iliad; a Roman praetor publishing an edict; Julian and a pupil; Justinian publishing the Corpus Juris; King John sealing the Magna Carta; the Chancellor publishing the first Statute of Westminster; Lord Coke barring King James from sitting as a Judge; and Chief Justice Marshall and Justice Story.

And, while, it’s unfortunate they have to close them permanently, that does mean you should be able to see this when you visit:

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