Today in Supreme Court History: August 7, 2010

8/7/2010: Justice Elena Kagan takes oath.

Justice Elena Kagan

 

Comments

[Dan Schiavetta]

Ex parte Clarke, 128 U.S. 395 (decided August 7, 1888): Harlan denies habeas to a steamship operator who had been convicted of selling alcohol in violation of a recently-enacted Pennsylvania statute; rejects argument that the statute is unconstitutional; as an aside he also believes that Congress wouldn’t have the power to override it (maybe this is why a Constitutional amendment ended up being necessary?)

[Martinned2]

You may have gotten two or more cases mixed up.

There's an Ex parte Clarke in 1879, which is a habeas case out of Ohio: https://supreme.justia.com/cases/federal/us/100/399/

There's Clark v. Pennsylvania (1888), which is a liquor case with the citation in the US reporter you mention, but doesn't involve habeas: https://supreme.justia.com/cases/federal/us/128/395/

And neither case involves Justice Harlan as far as I can see.

[Dan Schiavetta]

Thanks! I'll look these up and make corrections.

[John F. Carr]

That's the kind of mistake and acknowledgment I expect from generative AI.

[Noscitur a sociis]

I'm also not sure that either one of those was decided on August 7.

The 1888 case is dated November 18 in the reporter. The 1879 case isn't dated in the reporter, as far as I can tell, but Westlaw has October 1 listed.

[SMP0328]

(maybe this is why a Constitutional amendment ended up being necessary?)

The 18th Amendment was adopted because its supporters thought it would make Prohibition permanent since no amendment had ever been repealed (cf. 21st Amendment).

[Brett Bellmore]

But primarily because at the time enumerated powers doctrine was still a thing, and the federal government wasn't considered to have the power to actually ban anything. That's why the Harrison Act was indirect, written as a tax law. Similarly, its application to doctors was overturned in Linder v United States, because the Federal government had no power to regulate the practice of medicine.

The National Firearms Act, not much later, was also written as a tax law, because although the law's authors would have liked to have banned the weapons in question, it was understood that actually banning anything was beyond Congress' enumerated powers.

Of course, enumerated powers doctrine is basically dead at this point, but we need to remember that it actually was a big thing for most of the nation's history, and an amendment actually WAS thought to be necessary to give the federal government authority to ban booze. It's ahistorical to think people at the time held the same expansive view of federal power as is widespread today.

[apedad]

" . . . but we need to remember that it actually was a big thing . . . . "

We don't need to remember that at all (except maybe on a college US History 101 exam) - and we certainly don't need to follow it.

We the People, can choose to run our govt as we see fit.

[Brett Bellmore]

No, we need to remember it, if we're to understand the past. If you don't remember stuff like that, you end up inventing ahistorical motives for things like, oh, amending the Constitution to do Prohibition.

If you throw away understanding history, you can't learn from it. And you have a hard time recognizing if you've made a mistake, and maybe need to backtrack.

[Dilan Esper]

So look, Hammer v. Dagenhart (a good candidate for worst Supreme Court decision in history) reflected SCOTUS thinking back then so while Congress could probably get away with banning interstate shipment of liquor, SCOTUS might have struck down a sale ban.

However, this isn't as clear as you probably think it is, Brett. Because McDermott v. Wisconsin, in 1913, upheld the Pure Food and Drug Act and held it preempted state authority in that area. That was a massively important ruling-- even more so than Wickard-- in terms of setting Congressional power to regulate an interstate industry.

So it's actually possible the 1919 Supreme Court upholds a Prohibition statute. We don't know for sure.

But at the same time SMP is absolutely right that you can find MANY statements from Prohibitionists that the big reason they wanted an amendment and not a statute was they thought it would be permanent that way whereas a later Congress can repeal a statute.

[Frank Drackman]

Forget it Jake, Your trying to reason with an Ape, and I know I used “your” wrong, can’t any of you Schmucks get Irony? Even Alanis Morrison did

Frank

[Dan Schiavetta]

Everything about the case I summarized is correct. Westlaw has the cite as 128 U.S. 395. Another cite for it is 9 S.Ct. 2. Thanks for keeping me on my toes notwithstanding.

[Noscitur a sociis]

There are two cases, both involving the same guy (also the guy's name was "Clark", no "e"), that appear at 128 U.S. 395 in Westlaw. However, that appears to be a wrong: page 395 in the U.S. Reports contains only (the beginning of) the other case, Clark v. Commonwealth. In fact, I don't see Ex Parte Clark in the U.S. Reports at all! But Westlaw does say it was decided August 7 (so, three months before the case that actually is at that cite).

[Dan Schiavetta]

Will restricting it to 9 S.Ct. 2 avoid the confusion?

[Noscitur a sociis]

That's how I'd cite it.

[Frank Drackman]

People joke about JD Vance's "Childless Cat Lady" comment, but the Court has 2 of them.

[Passoner]

I hear that Kagan and Sotomayor 69 each other.

[Rev. Arthur L. Kirkland]

I now understand why professors such as Keith Whittington, Orin Kerr, Stephen Sachs, and William Baude choose to publish their scholarly observation at -- and associate their reputations and those of their employers with -- this blog.

I also understand why institutions such as UCLA and Northwestern wish to create as much distance between them and this white, male, bigoted, right-wing blog as can reasonably and lawfully be arranged.

[Libertatem]

Without fail...Rev. Arthur L. Kirkland will be in the comments saying this is a white, male, ring-wing blog...this time with "bigoted" sandwiched in the middle!

[Rev. Arthur L. Kirkland]

Almost as predictable as the paltry right-wingers who operate this blog being too cowardly and bigoted to say anything about the incessant stream of conservative bigotry published every day by their blog, eh?

[theobromophile]

I say this as a rock-ribbed conservative: I would rather put my son into the care of Elena Kagan than Lara Loomer.

[David Nieporent]

I would rather put my son into the care of Hannibal Lecter than Lara Loomer.

[theobromophile]

I doubt your son is four years old and watches Paw Patrol (privately operated rescue teams that make their money off merchandising and fix all of Mayor Humdinger's mistakes - raising libertarian kids FTW!). My son would be helpless against Hannibal Lecter.

[David Nieporent]

My son has not been 4 years old in a number of years, but he and my daughter absolutely watched Paw Patrol when they were. Still puzzles me why the only animals in Adventure Bay who could talk were the Paw Patrol members. And Lecter is still saner, and safer, than Loomer.

[Noscitur a sociis]

The late, great Hannibal Lecter?

[not guilty]

Many years ago there was a cookware store named Lechter's. I once asked the cashier whether the name of the store predated Silence of the Lambs. She had no clue what I was talking about.

[Passoner]

Me as well, but I'd rather put my son into the care of Lara Loomer than Pete Buttigieg or any other man who sees another male's butthole as a good place to penetrate.

[Rev. Arthur L. Kirkland]

Passoner says it so the Volokh Conspirators don't have to. A very handy, practical relationship.

[apedad]

So, you avoid churches too?

[Sarcastr0]

I thought you’d gotten into lesbians. Glad to see you still play the old, can’t-stop-thinking-’bout-buttsex hits!

[loki13]

That's another block. Is it the same guy with new accounts that is always doing this, or are that many people (or should I say, fringe conservatives that come here) obsessed with anal sex?

[Estragon]

It’s the same voltage guy

[Bob from Ohio]

"Elena Kagan than Lara Loomer"

Me too! But it is an inane comparison. Loomer is a half crazed rando with a twitter account, she is also childless herself.

Kagan or Justice Amy?

[Sarcastr0]

CHILDLESS

[Bob from Ohio]

Barren?

[Sarcastr0]

You appear to be using childless as a pejorative.

[LawTalkingGuy]

So you know how I constantly point out that you’re an asshole and a bad person? More than any political opinion you have, this is why. Infertility is something people can’t control and is something that is a heart-wrenching subject. It’s devastating to people. And here you are tossing it out as an insult without a second thought. That’s the kind of thing an asshole would do.

[Bob from Ohio]

Oh dear, I disappointed you again.

[LawTalkingGuy]

You can’t disappoint someone who has limited expectations in the first place. Just be careful and don’t make such a callous remark in the real world, okay?

[Rev. Arthur L. Kirkland]

What is your opinion of bottle-blonde harlot and barren spinster Laura Ingraham, Fox star and darling of the conservative "family values" crowd?

(One way to distinguish Ingraham from some women conservatives disparage is that those targets of right-wing "family values" ire never screwed Dinesh D'Souza and were never led around on a leash by Bob Guccione Jr.)

Carry on, clingers. So far as hypocrisy, cowardice, bigotry, and superstition could carry anyone in modern, improving-against-your-wishes-every-day America.

[LawTalkingGuy]

The better comparison is Trump (father of five) vs pretty much anyone else.

[LawTalkingGuy]

Also FWIW, I would trust any of the current justices with children. And that includes Kav.

[theobromophile]

Oh, ACB all the way! My one concern is that my son might not want to come back home. I would forever be second-rate mom material after a weekend with the Barretts.

[bernard11]

Kagan.

Not close.

[Frank Drackman]

What about Pete Booty-Judge and his Huband Jizz?

Frank

[Estragon]

I don’t know that folks are really joking so much about the cat lady comments as they are… you know, criticizing them. The comments certainly weren’t meant as a joke to begin with.

Now the couchfucking…… lotta jokes about that!

[Frank Drackman]

Man, when I think of how many Scub Tops I used as Cum Rags…..

Frank

[Estragon]

Keep it to yourself, it’s weird enough around here already

[Syd Henderson]

Actually, I've been seeing lots of cat jokes.

[CJColucci]

You say that as if it were a bad thing.

[bernard11]

Nobody jokes about it. They just consider it evidence that Vance is a jerk, the evidence of which is piling up as we comment.

[JoeFromtheBronx]

Some photos:

https://www.supremecourt.gov/publicinfo/press/oath/oath_kagan.aspx

An interesting letter from Lincoln to Gov. Seymour:

https://hd.housedivided.dickinson.edu/node/40424

[ducksalad]

Lincoln uses way too many commas.

[Stupid Government Tricks]

They all did. They were signs of pauses in speech. Commas shorter than semi-colons which were shorter than full stops, which is presumably why they were called full stops.

Read any of those comma-ridden sentences with appropriate pauses, and they sound quite different, and sometimes bring clarity which was lacking before.

[ducksalad]

Thanks for the enlightening explanation, I will revise my comment.

Lincoln used way too many pauses in speech.

More seriously, I think maybe speakers in that era put a lot more (melo)drama into their speaking style.

[Jonathansingletary]

Ha! The politician’s pause.

[Magister]

Steam powered 19th century teleprompters were slow and unreliable.

[Michael Resanovic]

Literally laughing at this one!

[F.D. Wolf]

On this day in legal history, August 7, 1934, the Second Circuit Court of Appeal, in a 2-1 decision affirming the district court, held that James Joyce's Ulysses was not obscene. United States v. One Book Entitled Ulysses, 72 F.2d 705 (2d Cir. 1934).

The case was carefully engineered by Random House publisher Bennett Cerf and his attorney Morris Ernst. Under their contingent fee agreement, Ernst would receive a royalty on every book sale for the rest of his life if Random House was able to publish Ulysses. (Both men were notorious publicity hounds). Cerf arranged for a copy to be sent from Europe to the New York, informing the Customs Service of when it would be arriving so that its agents could seize it. Customs failed to seize it initially, and the book was delivered to Random House. Cerf then took the book to Customs so they could seize it.

Cerf and Ernst waited several months to file their motion to get their book back to ensure the case would be tried before District Judge John Woolsey, who had a reputation for writing opinions high in literary style and rhetorical flourish, but light on legal analysis, and, in ruling that Ulysses was not obscene, produced just such an opinion. 5 F. Supp. 182 (S.D.N.Y. 1933). The United States appealed the ruling.

The appeals panel consisted of Judges Learned Hand, Augustus Noble Hand, and Martin Manton. Their conference made clear that the opinion would not be unanimous, with the Hands voting to affirm the district court, and Manton voting to reverse. The Hands, however, were not impressed by Woolsey's bombastic opinion and did not care for all the publicity the case was receiving. Gus suggested affirming the district court without opinion, but Manton's determination to write a vigorous dissent foreclosed that possibility. In keeping with the desire to minimize publicity, the Hands decided that Gus should right the majority opinion, as he was less renowned than his cousin Learned and was known for having a drier writing style. Despite their stated goal that the opinion should not contain "a single quotable line", Gus produced a quite quotable opinion.

The opinion marks a departure from the traditional test for obscenity test, the Hicklin test, named after the 1868 English case of R v. Hicklin. That rule provided that any material tending "to deprave and corrupt those whose minds are open to such immoral influences" was obscene, regardless of any overall literary merit. The U.S. Supreme Court explicitly adopted the Hicklin test as the proper test for obscenity in Rosen v. United States (1898).

In the Ulysses opinion, Gus Hand clawed back on this. He wrote that the test for obscenity should be the effect on the average person, not the most susceptible, and, more importantly, the test should view the work as a whole, not focus on isolated passages without context. (The Supreme Court would officially adopt this new test in Roth v. United States (1957).) Manton, in a lengthy dissent, argued that the Hicklin test was still the proper test.

Cerf would start cranking out copies of Ulysses the next day, and every one of the hundreds of thousands of copies sold by Random House would be prefaced with Judge Woolsey's district court opinion, making it one of the most widely read judicial opinions in history.

[Martinned2]

Thanks for sharing that story. How did I not know that there were two Hands?

[Estragon]

I didn’t know that before today, either. Wikipedia says they were cousins.

[JoeFromtheBronx]

You learned something in August.

Two hands or Hands are often better than one.

[Estragon]

Woulda been kind of funny if one was named Hook

[JoeFromtheBronx]

Gov. Gretchen Whitmer talks about a former colleague who lost his left arm in an accident. He used a prosthetic hook.

She would say that he was her “right-hand man.” Some people thought that was in bad taste.

But, he would respond “Yeah, people should not piss me off, because I have a mean left hook!”

[Noscitur a sociis]

Then there’s this guy, whose parents owe him big time:

https://www.lawrence.edu/people/learned-foote-visiting-assistant-professor-of-religious-studies

[Rev. Arthur L. Kirkland]

I learned about Learned Hand in law school.

I learned about Augustus Hand, from a framed memento featuring both Hands’ signatures hanging on the wall of a partner’s office, on my first day of getting paid for legal work.

That wall also had signed mementos from Llewellyn, Brandeis, Williston, Holmes, Harlan, White, Frankfurter, and many similar lawyers and judges, often with personal notes. It was an impressive display from a law student’s perspective.

[Dan Schiavetta]

According to my contracts professor, whose memory went back that far, they were called “right and left Hand”.

[F.D. Wolf]

As an epilogue on Judge Martin Manton, he had been appointed to the Southern District of New York in 1916 and then to the Second Circuit in 1918 by President Wilson. After Justice William Day retired from the Supreme Court in 1922, President Harding wanted to appoint a Catholic, and Manton was on his shortlist of possible replacements. Chief Justice Taft strenuously objected, calling Manton a "shrewd, cunning, political judge" who was unethical and never should have been appointed to the bench in the first place. Harding would eventually appoint Pierce Butler to the seat.

Taft seemed to be astute in his assessment of Manton, who would resign from the bench in 1939, facing pressure from an investigation by U.S. Attorney Thomas Dewey for taking bribes in exchange for bribes. Dewey had written to the House Judiciary Committee, recommending that Manton be impeached, though Manton resigned before the House took any action. Manton was charged with bribery and obstruction. He was acquitted on the bribery, but convicted on the obstruction charge, for which he was sentenced to two years in prison, serving 17 months before his release.

[F.D. Wolf]

"Bribes in exchange for bribes" should be "bribes in exchange for favorable rulings".

[John F. Carr]

There's a music mashup on YouTube titled "what bro country sounds like to people who don't like bro country." It might be AI generated. One line goes "got a beer in my beer, got a Chevy in my truck". Those bro country singers do like their beer and their trucks.

[JoeFromtheBronx]

"The Federal Judge Who Sold Justice: A Review of Gary Stein’s Biography of Martin Manton"

https://verdict.justia.com/2024/04/18/the-federal-judge-who-sold-justice

[John F. Carr]

Interesting story.

He took money in cases that turned out to be unanimous. Did the money corrupt the case anyway? He might have persuaded his colleagues to go along with a weak legal argument. The situation reminds me of the Maine school committee that refused to lease space to a church when one of its members was clearly motivated by hatred of Christians. (See yesterdays' post.) Is the whole decision contaminated?

[Rev. Arthur L. Kirkland]

Was it hatred of Christians or disdain for bigots?

[F.D. Wolf]

Thank you. That was interesting. I had not heard of that book. I might have to check it out. I recalled Manton's name from David Danelski's A Supreme Court Justice is Appointed (1964), an interesting book about President Harding's appointment of Pierce Butler to the Supreme Court that I read many years ago. (Published by Random House, as it happened).

[David Nieporent]

taking bribes in exchange for bribes.

That doesn't seem financially prudent.

[Magister]

Bribery arbitrage, which if it were a thing would be bribitrage.

[F.D. Wolf]

CORRECTION: Thomas Dewey was, at the time, the New York County District Attorney, not the U.S. Attorney.

[Passoner]

What's crazy is that the media keeps talking about Harris' "momentum," but she literally has done nothing other than accept the nomination and appoint a running mate. That's it.

It's sickening.

[Sarcastr0]

I'm not one to count my elections before the hatch, but posts like this - with full-on partisan zealots sounding bereft, frustrated, and impotent?

Gives me a lot of hope.

[Passoner]

Not frustrated at all. I want a full collapse and civil war, so bring it on. But it's sickening that the media doesn't even pretend to be objective anymore. It's literally a campaign arm of the Democrat Party.

[Jonathansingletary]

This is a sad thing to want, and you’re in a tiny minority. Most Americans want America to succeed, and they want to have good relationships with their friends, family and neighbors. And despite your opinion, I want you to have every chance to succeed in America and to have life, liberty, and happiness.

[Rev. Arthur L. Kirkland]

America will continue to succeed.

It will continue to improve against the wishes and works of conservative culture war casualties, in particular.

America's future will continue to be built on reason (rather than superstition), science (rather than dogma), inclusiveness (rather than bigotry and insularity), progress (rather than backwardness), immigration (rather than xenophobia), strong and educated communities (rather than can't-keep-up rural and southern backwaters), and our strongest research and teaching institutions (rather than nonsense-based education and conservative-controlled religious schools).

I do not expect gun nuts, religious fundamentalists (especially those seeking endless special privilege), Republicans, anti-abortion absolutists, conservatives, Federalist Societeers, Trump fans, faux libertarians, anti-government cranks, MAGA and QAnon followers, disaffected culture war loses, and others who have aligned with right-wing politics in America to like the next 50 years of our national progress any more than they liked the most recent 50 or 60 years of American progress.

They will entitled to continue to whine and whimper about it as much as they like, of course.

[Sarcastr0]

'I'm not frustrated, I'm just a bitter nihilist.'

Enjoy your self-imposed turbo-misery, forever, I guess.

[LawTalkingGuy]

“I want a full collapse and civil war, so bring it on.”

Lol. If you did, you wouldn’t be posting.

[Martinned2]

What do you think "momentum" is (as used in the press), and why do you think it needs to be dependent on a candidate actually doing something? It's like those guys who do technical analysis of stock market charts - staring at numbers and brewing a story out of them.

Certainly not something to get all upset about...

[Passoner]

Because the so called “momentum,” to the extent it exists, is created by the media. They’re not reporting on it, they’re creating it.

Does this look like reporting to you or an editorial?

"The Republican Party’s media allies are yet again struggling to coalesce around a single attack on the Democratic ticket.

In the hours since Kamala Harris tapped Tim Walz as her running mate, top figures in right-wing media have thrown everything but the kitchen sink at the Minnesota governor as they race to define him, seeking to tarnish the Midwesterner’s image with only 90 days to go before Election Day.

On Tuesday, Walz was portrayed in a harsh light as a left-wing “radical” who is supposedly out of touch with everyday Americans; he was criticized as a governor who allowed Black Lives Matter protesters to riot, engage in violence, and burn Minnesota’s cities without consequence; and was accused of being “groomed by the Chinese” after he spent his honeymoon in China.

Fox News, naturally, led the charge, with the right-wing network devoting segment after segment to assailing Walz and his character.

The wide array of attacks on Walz highlighted the GOP’s ongoing difficulty in settling on a single, effective line of attack against the Harris campaign. Since she assumed the top spot on the Democratic ticket in July, right-wing media has been noticeably struggling to present a cohesive narrative against her. Instead, they have resorted to a range of disparaging remarks, branding Harris as a “DEI” candidate and mocking her laughter, among other offensive criticisms."

[Brett Bellmore]

When it comes to reasons to dislike those two, it's a target rich environment. It does seem a little crazy to insist that they only be criticized on one issue.

[Passoner]

Correct. The media is not reporting. It's advocating.

[bernard11]

Call me when Walz endorses a book that calls his political opponents untermenschen - sorry, "unhuman" - and says democratic means are not enough to fight them, which echoes Vance's views.

[Passoner]

Vance is right. Josh Shapiro and the other anti-American leftists are subhuman.

[Frank Drackman]

You think Walz has read a book? The guys Deaf!(why no jokes about his Oxy Addiction? Like you did with Rush Limbo?) He can’t even enjoy Barry Hussein Osama’s “Wet Dreams of my African Father who abandoned me” via Audio Book and hear BHO say “Nigger” (he only pronounced 1/2 of the “er” sound)

Frank

[Rev. Arthur L. Kirkland]

The media didn't contribute hundreds of millions of dollars to the Harris-Walz campaign in a couple of weeks. Americans enthusiastic about the Harris candidacy did.

The media did not signing up tens or hundreds of thousands of new volunteers for the Democratic Party in recent days. Those were American citizens participating in democracy and expressing a desire to work toward a better America and reject another four years of Trump chaos and Republican backwardness.

The media isn't filling big-city venues for Harris-Walz rallies (or choosing to stage Trump rallies at half-full pig farm fields).

The media didn't close the upper deck for a Trump rally at the same venue Vice President Harris filled (the Trump campaign did that).

[Mr. Bumble]

...and just who did contribute that kind of money? Small dollar donors?
Act Blue is a laundromat for illegal donations.

[Magister]

Well, at the risk of being doxxed, I gave $50 last month.

While I suppose it's good that Bumble is keeping up with the conservative talking points, it wasn't ActBlue that handled $10 million from the Egyptian president, or had to pay $2 million for charitable funds misused for political purposes, or got convicted of felonies for concealing illegal campaign contributions.

[Mr. Bumble]

$10 million; chump change compared to what goes through Act Blue.

[Magister]

Yes, in that anyone giving Trump money is indeed a chump. But also those are just the ones we finally found out about.

Still waiting for an investigation of ActBlue that isn't a dishonest political performance like the investigation of Joe Biden's family.

[bernard11]

Me too.

I made a generous (though not in sight of Egypt's number) contribution to the Harris campaign.

[David Nieporent]

Just a reminder: the most one can contribute to a campaign is $3,300. (If one is a foreign government, the most one can contribute is $0, but that's a separate issue.) So whenever you read about Elon Musk, or some celebrity, saying they're donating millions to someone's campaign, they aren't. They are donating to a PAC that supports the candidate, not to the actual candidate.

[Passoner]

No, the media is reporting how great she is, hoping to get undecideds jump on the bandwagon.

A half-black, half-Indian anti-American leftist with a token WASP running mate who really takes his marching orders from the blacks and the Jews is not a way of making America better.

[Rev. Arthur L. Kirkland]

Comments like that are the way to please the disaffected, cowardly law professors who operate this white, male, right-wing blog, though. You give them tingles, but they are too shy to thank you.

So I will mention it for them.

[Magister]

Yeah, reading that, Fox News is really biased. Good catch.

[David Nieporent]

she literally has done nothing other than accept the nomination and appoint a running mate. That’s it.

I suppose she could've gone and played a lot of rounds of golf and lied about how she did, instead.

[Rev. Arthur L. Kirkland]

I have mentioned to more than one Democratic official that it might be worthwhile to give Rick Reilly a five- or ten-minute podium spot at the convention. His recounting of Trump's golfing habits is entertaining and illuminating.

Spoiler: Trump is a shameless, lying, cheating asshole. It seems to be as habitual as Eugene Volokh's use of vile racial slurs.

[Frank Drackman]

Great Effort Revolting!
You can pick up your “Participation” Trophy with the other Retards after you’ve returned your Helmet and Orthopedic Shoes.
Let me know when “45/47” claims to have carried an AR-15 in War, heck at least Shapiro went to Israel even if he didn’t serve in the IDF,
And to think she could have had an Astronaut/Navy Fighter Pilot who might have helped carry AZ/Nevada?
But hey, this puts Minn-A-Soda “off the map” (or does it?)

Frank

[Intelligent Mr Toad]

I love Hunter girls!

[Passoner]

https://media.cnn.com/api/v1/images/stellar/prod/d8b4e955-724f-485b-a2a1-031085739d61.jpg?c=original&q=w_1280,c_fill

This picture of Harris' rally says it all. The Democrats' support is from ugly white single women and non-whites.

[ducksalad]

Do the math. Depending on your definition of ugly, that can easily get them past 51%.

[Sarcastr0]

Given how much this poster thinks about gay sex we could be talking about a very wide definition indeed...

[Ridgeway]

Maybe he just needs a nu start.

[Passoner]

That is indeed a problem. If you consider bitter single women and the 18 year old children of worthless illegals who crossed the border 19 years ago to be just as good and worthy of representation as the descendants of Benjamin Franklin, then you can say that Americans desire progressive policies.

If you sensibly realize that white Protestant men are simply better human beings, then you realize the flaw in that thinking.

[Rev. Arthur L. Kirkland]

The Volokh Conspirators -- and other Federalist Society members and fans -- do not respond to comments such as that one because they can't type while standing and applauding.

Carry on, cowardly clingers.

[theobromophile]

You're not convincing women to join your side.

You're far better off pointing out that conservative women are happier, regardless of what we do in our lives - single, married, long term partnered, stay at home moms, working moms, childless, lots of kids.

[Passoner]

I don't want women on my side. Women aren't suited for leadership or voting, and it was once axiomatic.

[theobromophile]

Obviously you don't know what axiomatic really means.

[Rev. Arthur L. Kirkland]

" You’re far better off pointing out that conservative women are happier "

They claim to be happier. They claim a lot of things that don't check out.

[bernard11]

Even if true, this hardly proves anything. It's just a correlation that could be based on anything - conservative women being better off financially, for example - or nothing at all.

[Magister]

Suicide rates are higher in conservative states, and suicide risk seems to be correlated with conservatism. It sounds like claiming to be happy rather than being happy, and right now you can certainly see a lot of unhappy conservative commenters here (if you unmute them). They're weird that way.

[Estragon]

Thanks to our super well designed system, 51% doesn’t get it done for Harris— not by a long shot

[Frank Drackman]

Well get in your time machine, go back to 1789, and change our super well designed system. Or get 2/3 of each chamber, 3/4 of the states, or have 3/4 of the states call for a Constitutional Convention and change it there.

Frank

[Estragon]

Thanks for that Frank— the modern Faulkner speaks! It’s the same sneering response from every dipshit here over the years… and I suppose you’re right in a way.

In 20 years, 30% of the people will be represented by 60% of the votes in the Senate (roughly). And vice versa. In the words of “childless cat lady” Justice Elena Kagan:

“It’s a hell of a way to run a railroad.”

It won’t last forever, and deep down you all know it.

[Frank Drackman]

I’m 62, but Mom is 82 and Dad 84 and both certain “45/47” votes (I keep urging them to “Vote Early) in the end we’re all dead, like the past, which isn’t
Don’t hate me because I’m richer/better looking/ better Ed-Jew-ma-cated/ do more for the Po(ever passed Gas in Haiti for Rand(y) Paul? Oh, don’t have 200+hrs in Jet Fighters? Maybe in another life,

Frank

[Estragon]

“The past isn’t past”

This again?!? Can you come up with some other Faulkner or is this it? My friend from college rhino wrote his whole thesis on Faulk, you should get a copy.

“Don’t hate me because I’m richer/better looking/ better Ed-Jew-ma-cated”

Another repeat, maybe the 15th? You know— if you’ve ever been around rich, good looking, athletic folks— there’s this one strange quality about them: they don’t brag about it on the internet (or in real life). Why? Res Ipsa Loquitur motherfucker

[Rev. Arthur L. Kirkland]

" The Democrats’ support is from ugly white single women and non-whites. "

Democrats are supported by ugly white single women and non-whites.

Republicans are supported by (and the Volokh Conspiracy is operated and caters to a fan base of) disaffected, roundly bigoted, un-American, spectrum-inhabiting, downscale, white male clingers concentrated in America's left-behind backwaters.

Should be a good race (from the perspective of better Americans).

[Syd Henderson]

Also single cat daddies.

[JoeFromtheBronx]

"Bush Administration Lawyer Whose Wife Was Killed on 9/11 Supports Plea Deal"

Ted Olson has various connections with SCOTUS.

https://www.nytimes.com/2024/08/06/us/politics/sept-11-plea-agreement.html

[loki13]

There was a recent, and excellent, podcast exploration of the issue.

The problem is because of ... issues ... involved in what the US did while we had them, it is unlikely that there could ever be a trial, let alone a death penalty. Which is why this case remains in limbo.

A plea deal is the only sensible thing. But ... the political optics of it for people who haven't followed what is going on legally are terrible (UR GOING TO LET THE 911 TERRORISTS OFF WITH A PLEA DEAL!!!11!!!!). So the status quo of limbo will be maintained.

[LawTalkingGuy]

Also there are people who HAVE followed the legal developments closely and are mad any laws or legal process ever were involved. Mad that anyone brought up that torture is illegal. Mad anyone thought there was such a thing as due process. Mad that anyone thought the military commissions had to abide by any rules.

But had we followed the rules from the beginning, KSM and other high level Al qaeda ops would be dead by now. Federal district could would find him guilty and sentenced him to death. It would be affirmed. 2255s would be denied. It’d be a Tim McVeigh schedule. Bush could have signed the warrant in late 2008 probably.

[Passoner]

Like you people care about laws. You certainly didn't when your pet Supreme Court undid centuries of tradition by finding that the Due Process Clause created a right to penetrate your "husband" and to shoot off inside.

[LawTalkingGuy]

Yeah. Thats right. People like me think the fourteen amendment’s guarantee of liberty does mean something. Thanks for saying so.

[Passoner]

The 14th Amendment doesn't guarantee liberty. See, you people can't stop lying for one minute.

Even if it did, why does liberty begin and end with killing babies and ejaculating into other men's anuses?

[Martinned2]

Which is why this case remains in limbo.

Just putting it out there: Usually when there's no way to legally prosecute a defendant, they don't end up in pre-trial detention indefinitely.

[Rev. Arthur L. Kirkland]

The Federalist Society torture brigade -- which featured more than one Volokh Conspirator, as I recall -- fucked that up comprehensively.

The best part is that some of those conservative assholes still call themselves, and perhaps even still think of themselves as, libertarians.

[Frank Drackman]

“And we can make sure that those weapons of war, that I carried in war, is the only place where those weapons are at,”
Tim Walz
Trying to find what “War” Governor Walz served in, Oh,
my bad, obviously Veet-nam, right along side “Danang Dick” Blumenthal,
Someone should tell the Guv’na that some Veterans don’t take Stolen Valor Claims lightly

Oh, and I thought he was supposed to be a Teacher? Ending a sentence with "at", Oh wait, he was a Foo-Bawl Coach, my bad, amazing the guy can even speak.

Frank

[Passoner]

If that’s the case, Walz, why aren’t you demanding the police forfeit them?

[Frank Drackman]

They need something to pawn after they’re “D-funded”

[Charlemagne]

The Democrats' base consists of the following groups:

Blacks who want welfare and racial preferences, Hispanics who want welfare, racial preferences, and amnesty for everyone with brown skin, limp wristed homosexuals who want their deviant lifestyle validated by society, single women who want society to pay for their birth control pills and abortions, union th*gs who want to legally extort as much as possible from the taxpayers, reform "Jews" whose "practice" of Judaism consists of bashing Christianity and whining about the Holocaust, unemployed people whose idea of a job search is sending their resumes written on a napkin to two random companies per week, jihadist Muslims who take advantage of the left's open borders policies (even for people who want to kill them), atheists who are offended by a God they say doesn't exist, people who think guns are evil and that murder is impossible without them, environmentalists who think that a winter storm is proof of global warming, pathetic lazy losers who get high all day, "students" who want the loans they took out to get a degree in gender studies forgiven, pathetic city dwellers who think that their running marathons and eating fair trade granola snacks contributes to society, and finally, disingenuous white liberals who use the others as pawns to gain power. In other words, parasites who make America worse.

[David Nieporent]

It's past your bedtime.

[Frank Drackman]

Hey, I’m a Jew, (OK not “reformed”) and the only reason you’re not typing this Bullshit In German, Japanese, or Driving on the Left(I’m a Lefty and hated driving in the UK) is because Jews died fighting the Krauts, Japs, and Limeys (ever heard of Crispus Attucks? It was Crispus Attuck-stein before he changed it) What Military Service did you serve in or were you honest about your Turd Burglaring conviction?

Frank

[JoeFromtheBronx]

There appears to be some sort of confusion with today’s opinion.

There is a Clark v. Commonwealth of Pennsylvania with facts something like those but no Harlan, no habeas, not that date.

https://case-law.vlex.com/vid/clark-v-commonwealth-of-893757608

Fenemore v. United States was decided on August 7, 1797.

https://supreme.justia.com/cases/federal/us/3/357/

Note: There was an August Term early on & some cases arose then, including the notable case of Calder v. Bull.

[Dan Schiavetta]

Thanks. See my comments above.

The Fenimore link says it was decided 7 August 1787 which can’t be true.

When searching for cases to summarize I search Westlaw, then Google. So I might be missing some cases, particular if the date is given British style (such as 7 August).

[JoeFromtheBronx]

It's a typo. It's 1797.

[Noscitur a sociis]

Although the reporter (Alexander Dallas) says it was 1787!

[Syd Henderson]

These primordial cases are notable because there simply weren't that many cases, though Calder v. Bull was interesting and established a bunch of precedents simply because there weren't that many cases before it. My favorite is "Hylton v. United States", which established the principle of judicial review in 1796, though it wasn't until Marbury v. Madison that it was used to overturn an act of Congress,

[Frank Drackman]

Governor Waltz’s future?
I see, a line of his former students/players who didn’t appreciate his “Extra Attention” ( I can hear it now “because of Republican Cutbacks I had to be School Nurse!”)
Seriously, he looks like every creepy old guy who shows up with a 6 pack and Condoms on that “To Catch a Predator” show

Frank

[bernard11]

I think you have him mixed up with Dennis Hastert.

[Rev. Arthur L. Kirkland]

Which candidate was found liable for sexual assault by a jury?

Which assholes support that criminal loser?

[Frank Drackman]

Bill Clinton, but he’s not running