FIRST ONE @ ONE FIRST

Scalia Returns to Form, Thomas Sucker Punches Scalia’s Prodigality

Posted in Case Reports by Mike Sacks on January 19, 2011

Today’s unanimous decision in NASA v. Nelson–see here for my oral argument recap from October–held that the government has the power to conduct full background checks despite the argument by employees of NASA’s Jet Propulsion Lab that parts of those checks violate their right to “informational privacy.”

Writing for six members of the Court, Justice Alito refused to address whether such a right actually exists, and instead assumed its existence for the sake of rejecting its application to the JPL employees’ claims.  Justices Scalia and Thomas, however, refused to go along with this compromise resolution.  Instead, Scalia, in a separate concurrence joined by Thomas, returned to form with a bruising critique of the Court’s “substantive due process” jurisprudence–the very jurisprudence he adopted to extend the Second Amendment to the states in last year’s oral argument and plurality opinion for McDonald v. City of Chicago.

Nevertheless, Justice Thomas wouldn’t let Scalia return to the fold without reminding Scalia of his last year’s prodigality from their bedrock principles.  I’ll let Josh Blackman take it from here:

Scalia’s opinion returns to his usual antagonism towards substantive due process. Not even a single citation to McDonald. No attempt to reconcile his aberrant opinion in the famed gun case. I suppose that McDonald will be the new Gonzales v. Raich, and we should “just get over it.” (that is Scalia’s common refrain when people ask him to reconcile Raich). As recently as last week, Scalia joined a Thomas dissent from denial of cert, other than a footnote that relied on Raich. As I have written at great length, Scalia’s opinion cannot be explained here. His position is at odds with two decades of jurisprudence, and he makes no effort to explain it. While Thomas cites to McDonald, Scalia ignores it. Scalia’s acquiescence to substantive due process in McDonald cannot be reconciled with his animosity towards that “plastic” standard.

Justice Thomas wrote his own curt one paragraph concurring opinion in judgment.

“I agree with JUSTICE SCALIA that the Constitution does not protect a right to informational privacy. Ante, at 1 (opinion concurring in judgment). No provision in the Constitution mentions such a right. Cf. Lawrence v. Texas, 539 U. S. 558, 605–606 (2003) (THOMAS, J., dissent-ing) (“I can find neither in the Bill of Rights nor any other part of the Constitution a general right of privacy . . .” (internal quotation marks and brackets omitted)). And the notion that the Due Process Clause of the Fifth Amendment is a wellspring ofunenumerated rights against the Federal Government “strains credulity foreven the most casual user of words.” McDonald v. Chi-cago, 561 U. S. ___, ___ (2010) (THOMAS, J., concurring inpart and concurring in judgment) (slip op., at 7).

What does Thomas’ concurring opinion add? Thomas focuses on the fact that the due process clause does not protect unenumerated rights, suggesting that it can protect enumerated rights. Perhaps he is trying to provide cover to Scalia, who joined McDonald’s due process opinion. As I have theorized before, because the Second Amendment is actually enumerated, Scalia may find this approach palatable. I find this distinction unpersuasive. As I have argued before, whether the right is enumerated, or unenumerated, the Court still needs to rely on some nebulous notion of liberty. Thomas may be trying to explain Scalia’s opinion, where Scalia would not do so specifically. In my mind, its not effective. Regardless, not even Thomas would accede to relying on the due process clause to protect an enumerated right. To quote my good friend Mike Sacks, this concurring opinion can best be characterized as a “sucker punch.” Ouch.

The standoff continues.

The Second Amendment: Ramifications of Repeal

Posted in Law and Politics by Mike Sacks on January 10, 2011

The shooting of Representative Gabby Giffords in Arizona this weekend and the flurry of constitutional commentary upon the start of the 112th Congress–including talk of repealing or altering the 14th, 16th, and 17th Amendments and, thanks to Justice Scalia, a renewed call for an Equal Rights Amendment–has led me to think about what would happen if there was a push for a new constitutional amendment that would repeal the Second Amendment (2A).  Indeed, just a few of hours ago, Elie Mystal at Above the Law went there.  The more I think about it, the more it appears that such a repeal effort would paradoxically lead the most passionate gun rights advocates to embrace the dissenters’ views in Heller and McDonald in ways never anticipated by Justice Stevens et al.

The 2A, literally read, tethers gun ownership to militia membership, however hard the Heller majority tried to convince us otherwise by marginalizing the Amendment’s militia-speak as a “prefatory clause.”  Because we had no standing federal army at the time of the 2A’s ratification, and because states formed militias comprised of each state’s able-bodied men, individuals needed the right to own guns in case a tyrannical federal government did raise an army to invade the states.

But if we were to take Sharron Angle’s incendiary and irresponsible “Second Amendment remedies” quip from this summer in a charitably originalist manner, then those remedies mean the right of any people to rise up in revolution against a tyrannical government. This right is explicitly stated in our country’s Declaration of Independence and endorsed by Thomas Jefferson with his quote, “[t]he tree of liberty must be refreshed from time to time with the blood of patriots.”  And, unless an American revolutionary wants to wage guerrilla war or commit acts of terrorism, the accepted way to do this is to form militias, armed by individuals exercising their 2A rights, to engage in conventional warfare with the federal government.  Of course, just because the right to rise up in revolt exists doesn’t mean the cause is actually righteous or that the federal government cannot seek the perpetuation of its own just existence by putting down the revolt.  See, e.g., the Whiskey Rebellion or the Civil War.

Now, it’s currently unimaginable to think of Congress as currently situated ever passing a 2A repeal amendment, let alone finding 38 states willing to ratify it.  But if we can get past that hurdle of unimaginability, it’s absolutely imaginable that some states and certainly many individuals would consider Congressional passage of a 2A repeal amendment, whether or not it is ratified, to be a tyrannical act by the federal government that threatens to take away both a fundamental right to bear arms as interpreted by the Supreme Court as well as a mass taking of legally obtained property without just compensation.

And here comes the paradox: anti-repeal states could very well then vindicate liberals’ 2A interpretation by calling up “well-regulated militias” to “secure” their “free states” comprised of individuals who, in joining the militias, are exercising their “right of the people to keep and bear arms.”

In other words, an amendment to take away peoples’ guns could trigger the very scenario, in the eyes of Second Amendment supporters, that the framers imagined in drafting the Second Amendment.  In creating that scenario, then, gun owners would throw into relief through actual practice just how unoriginalist Scalia et al. were in their theory supporting the Heller majority.

I believe both components of this scenario–(a) the passage of a repeal amendment in Congress that (b) will trigger the mainstreaming of the militia movement–will never come to pass.  As an intellectual exercise, however, it’s worth thinking through possible consequences of our responses to heinous acts such as the one that took place this weekend in Arizona.

If the shooting inspires enough political momentum for Congress to re-up the statutory Federal Assault Weapons Ban and inspire state and local governments to strengthen their gun regulations, then it is worth looking to the Court for how politics has and will influence its shaping of the Second Amendment.

Heller could not have been decided the way it was had it not been for the rise in the last half-century of the “individualist” narrative.  Whether or not that narrative constituted “fraud,” as Chief Justice Burger stated from retirement in 1991, it became a tenet of modern conservatism and so mainstream a strain of American political thought that many Democratic politicians–including then-Senator Barack Obama, former Senator Russ Feingold, and Representative Gabby Giffords–supported Heller‘s result.  In essence, the conservative majority in Heller may have inflamed the half of the public rooting for the “collectivist”–or militia-based–interpretation, but the political winds had pushed the Court’s decision into safe harbor.

Had the liberal dissent prevailed in Heller, the country would have had a massive administrability problem that could have quickly descended into political chaos and violence.  Who gets to keep his or her guns?  What guns remain protected?  Can the federal government, finding militias anachronistic, ban guns altogether throughout the country?

While the Heller decision is often rightly explained in ideological terms, it still got the pragmatics right: it relieved the country of its polarized, zero-sum politics over gun rights on the side of least ideological and practical resistance, while defining the right so narrowly as to leave for later cases the true scope of reasonable regulations of the individual right to keep and bear arms for self-defense.

It remains easy to imagine that a Democratic nominee to Justices Kennedy’s or Scalia’s seat could lead to a reversal of Heller or so broad an acceptance of reasonable regulations as to limit Heller to its specific facts.  But now that this country’s steady stream of massacres has finally flooded into Congress and the Judiciary with the shooting of Rep. Giffords and the slaying of Chief Judge John Roll, perhaps the Court as presently constituted will be inspired by Justice Breyer’s Heller dissent to look more kindly upon state, local, and federal gun regulations than they would have had such violence remained for them a political and legal abstraction.

UPDATE: Josh Blackman responds.

UPDATE II: Michael Doyle of McClatchy has an article headlined, “Arizona shootings unlikely to change federal gun laws.” (h/t How Appealing)

UPDATE III: Jo Becker & Michael Luo of the New York Times posit Tucson’s gun culture against federal regulatory efforts.

UPDATE IV: Patrick J. Charles responds at his site, The Charles Law & History Blog.

Television Indecency!

Posted in Case Reports, Clairvoyance by Mike Sacks on July 13, 2010

I wrote last night of internet obscenity.  Today, the Second Circuit handed down its opinion in Fox v. FCC, declaring unconstitutional the FCC’s indecency policy of fining network television stations for broadcasting fleeting expletives.

The Second Circuit heard this case on remand from the Supreme Court, which last term upheld the FCC’s regulation as a matter of administrative law by a 5-4 vote.  The Court refused to address the constitutional question of whether the policy violated the First Amendment – the issue the Second Circuit answered in the affirmative today.

Justice Thomas concurred in last year’s conservative majority, expressing his willingness to strike down the regulation on constitutional grounds even though he did not believe it to be impermissibly arbitrary or capricious under the Administrative Procedure Act.  Thomas advocated for overturning precedents that gave less First Amendment protection to broadcast speech than otherwise given to utterances in printed media or cable television.  “Red Lion and Pacifica,” he wrote, “were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity.”

Thomas has made a career out of similar separate opinions calling for breaks from incorrect precedents.  While commentators may debate the long-term influence of Thomas’s lone cry in McDonald this term to overturn over a century of precedent so to exhume the Privileges or Immunities Clause of the Fourteenth Amendment, they may find more immediate satisfaction if FCC v. Fox (captioned Fox v. FCC in today’s Second Circuit opinion) gets back to the Court on the constitutional issue.

Here’s the money quote from Judge Pooler’s opinion, which echoes Thomas’s concurrence:

The Networks argue that the world has changed since Pacifica and the reasons underlying the decision are no longer valid. Indeed, we face a media landscape that would have been almost unrecognizable in 1978. Cable television was still in its infancy. The Internet was a project run out of the Department of Defense with several hundred users. Not only did Youtube, Facebook, and Twitter not exist, but their founders were either still in diapers or not yet conceived. In this environment, broadcast television undoubtedly possessed a “uniquely pervasive presence in the lives of all Americans.” Pacifica, 438 U.S. at 748.

The same cannot be said today. The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus. Cable television is almost as pervasive as broadcast – almost 87 percent of households subscribe to a cable or satellite service – and most viewers can alternate between broadcast and non-broadcast channels with a click of their remote control. See In re Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, 24 FCC Rcd. 542, at ¶ 8 (2009). The internet, too, has become omnipresent, offering access to everything from viral videos to feature films and, yes, even broadcast television programs. [...]

Moreover, technological changes have given parents the ability to decide which programs they will permit their children to watch. [...] In short, there now exists a way to block programs that contain indecent speech in a way that was not possible in 1978. In fact, the existence of technology that allowed for household-by-household blocking of “unwanted” cable channels was one of the principle distinctions between cable television and broadcast media drawn by the Supreme Court in Playboy. The Court explained:

The option to block reduces the likelihood, so concerning to the Court in Pacifica, that traditional First Amendment scrutiny would deprive the Government of all authority to address this sort of problem. The corollary, of course, is that targeted blocking enables the Government to support parental authority without affecting the First Amendment interests of speakers and willing listeners – listeners for whom, if the speech is unpopular or indecent, the privacy of their own homes may be the optimal place of receipt.

We can think of no reason why this rationale for applying strict scrutiny in the case of cable television would not apply with equal force to broadcast television in light of the V-chip technology that is now available.

Nevertheless, Pooler refused to defy Supreme Court precedent and instead struck down the regulation as an impermissibly vague restriction on speech:

We agree with the Networks that the indecency policy is impermissibly vague. The first problem arises in the FCC’s determination as to which words or expressions are patently offensive. For instance, while the FCC concluded that “bullshit” in a “NYPD Blue” episode was patently offensive, it concluded that “dick” and “dickhead” were not. Omnibus Order, 21 F.C.C. Rcd 2664, at ¶¶ 127-128. Other expletives such as “pissed off,” up yours,” “kiss my ass,” and “wiping his ass” were also not found to be patently offensive. Id. at ¶ 197. The Commission argues that its three-factor “patently offensive” test gives broadcasters fair notice of what it will find indecent. However, in each of these cases, the Commission’s reasoning consisted of repetition of one or more of the factors without any discussion of how it applied them. Thus, the word “bullshit” is indecent because it is “vulgar, graphic and explicit” while the words “dickhead” was not indecent because it was “not sufficiently vulgar, explicit, or graphic.” This hardly gives broadcasters notice of how the Commission will apply the factors in the future. [...]

[T]he absence of reliable guidance in the FCC’s standards chills a vast amount of protected speech dealing with some of the most important and universal themes in art and literature. Sex and the magnetic power of sexual attraction are surely among the most predominant themes in the study of humanity since the Trojan War. The digestive system and excretion are also important areas of human attention. By prohibiting all “patently offensive” references to sex, sexual organs, and excretion without giving adequate guidance as to what “patently offensive” means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment.

What seems certain from last year’s vote is that the Supreme Court, should it grant certiorari in this case, will affirm the Second Circuit’s judgment.  If the four liberals–Stevens, Souter, Breyer, and Ginsburg–would have invalidated the policy on administrative law grounds, they would likely strike it down on constitutional grounds as well.  And Thomas would surely provide a fifth vote, given his concurrence.  Because no other member of the Court’s Fox majority joined Thomas’s concurrence, I question whether Roberts, Scalia, or Alito will side with the dissenters on the constitutional question, though I fall back on conventional wisdom in thinking that Kennedy is up for grabs.

The question now is whether the Court would follow Thomas’s suggestion and remove the constitutional distinctions between broadcast and other mediums, thereby submitting all speech restrictions to strict scrutiny.  We don’t know how Sotomayor or Kagan would look towards uprooting precedent, especially one of Kagan’s (assuming she gets confirmed) predecessor’s landmark rulings.  Stevens himself intimated in his Fox dissent that “Justice Thomas and I disagree about the continued wisdom of Pacifica,” implying that he would follow the Second Circuit’s void-for-vagueness ruling rather than overturn himself.

Justice Ginsburg, however, signaled her openness to joining Thomas by citing Justice Brennan’s Pacifica dissent:

The Pacifica decision, however it might fare on reassessment, see ante,at 6 (Thomas, J., concurring), was tightly cabined, and for good reason. In dissent, Justice Brennan observed that the Government should take care before enjoining the broadcast of words or expressions spoken by many “in our land of cultural pluralism.” 438 U. S., at 775. That comment, fitting in the 1970’s, is even more potent today. If the reserved constitutional question reaches this Court, see ante, at 26 (majority opinion), we should be mindful that words unpalatable to some may be “commonplace” for others, “the stuff of everyday conversations.” 438 U. S., at 776 (Brennan, J., dissenting).

An Inspiring Sight for All

Posted in Case Reports, Kagan Nomination, Law and Politics by Mike Sacks on July 1, 2010

My latest–and final–ABA Journal online column from the Court’s 2009-10 term is now live:

Solicitor General Elena Kagan’s first unabashedly straight answer of her confirmation hearings to become a Supreme Court justice came early in her 17 hours of questioning by the Senate Judiciary Committee this week. Ninety minutes into Kagan’s interrogation, Sen. Herb Kohl, D-Wisc., asked her for her opinion on cameras in the Supreme Court.

“I think it would be a terrific thing to have cameras in the courtroom,” said Kagan (Video). “When you see what happens there, it’s an inspiring sight…It would be a great thing for the court and a great thing for the American people.”

Twenty-four hours earlier, I was sitting inside the court witnessing its final session of the term. Like a dozen times before, I had sat through the night on the pavement outside to be among the few who would catch a glimpse of the inspiring sight to which Kagan, by virtue of her office, had a front row seat all this year.

But on Monday morning, I would have traded all of my own fond memories of new friends made and stories told over the past six months for the whole country to have seen the same moving scenes I saw.

Read the rest here.

Pre-EndOfTerming

Posted in Anticipation by Mike Sacks on June 28, 2010

We Can Be Friends

Back home for a shower and a suit-up.  A few thoughts:

  • How wonderful it is to come home sweating rather than freezing.
  • The fifth person in line was the Phantom First from McDonald – the oral argument was on a Tuesday, but he arrived at 7am on the Sunday prior.  I discovered him that day while I was on an afternoon run with the First Lady of First One @ One First.  Later that evening, I went back to talk to him.  Once there, another two people showed up to scope out the line.  The Phantom First was packing his things up after a day in the cold when he realized that his brother, for whom he was keeping a second seat in line, was not coming.  He said he’d be back the next morning (Monday) at 4am.  I had no interest in competing with that, but the other two were appropriately spooked and got to the Court at 5:30am on Monday morning…with the Phantom First nowhere to be found.  Those two–Rob and Larken–became the first ones at One First for McDonald.  Last night, then, I was pleased to see the Phantom First return with his brother to claim fourth and fifth in line.
  • The best and worst part about this blog is having readers inspired enough to beat me to the Court.
  • A largely lawyer/law student crowd this morning, but Dick Heller and Otis McDonald also got in line to see their gun rights cases extended and won, respectively.
  • Around 1:30am, we were regaled to some tales, whether true or tall is undetermined, by a man from Noname, Alaska trying to find Union Station.  He spoke of white moose and face-licking grizzlies while catcalling the Court police officer on duty.

Gotta get moving to get back to the Court on time for Stevens’s last day and the final four decisions.  I’ll have something more expository about the campout and the decisions later tonight or tomorrow.

Until then, enjoy my 12:30pm liveblog of the Elena Kagan hearings!

Heading Over Now and A Prediction

Posted in Anticipation, Clairvoyance by Mike Sacks on June 27, 2010

About to head over to the Court.  Chance of thunderstorms and an already-existing line shall not stop my final campout of the term.

After my obligatory “First” or “Not-so-First” photo up here, I will switch to my Twitter feed to send sporadic stati throughout the night.

Meanwhile, here’s a quick McDonald prediction based upon the oral argument:

  • Roberts, Scalia, Kennedy, and Alito for full incorporation Heller‘s federal vision of the Second Amendment to the states via the Substantive Due Process doctrine.  Maybe a few concurrences–Scalia explaining himself for why he’s accepted SDP, distinguishing its use for incorporation purposes as a matter of stare decisis while still hating on it as a tool for finding unenumerated constitutional rights; Kennedy, in response, trumpeting the “liberty” component of the Due Process Clause for protecting and incorporating both enumerated and unenumerated rights.
  • Thomas concurring in the judgment for full incorporation via the Privileges or Immunities Clause of the Fourteenth Amendment, arguing that the Court missed its chance to overturn Slaughterhouse and right a longstanding constitutional wrong.
  • Stevens concurring in part and dissenting in part, joined by Sotomayor, agreeing with the plurality to incorporate via SDP, but arguing for a more limited scope of incorporation allowing for the states for more breathing room in instituting gun control laws.  Although Stevens was the lead dissenter in Heller, he will provide a final example of his “judicial conservatism” by abiding by stare decisis in recognizing the individual right to keep and bear arms.  In doing so, however, he will work from the “inside” in a futile attempt to limit what he will present as the deleterious societal effects and misguided interpretive history of the Court’s prevailing gun rights jurisprudence.  Sotomayor will sign because she joined the Court after the Heller decision and would therefore feel improper rejecting it outright.
  • Breyer, joined by Ginsburg, dissenting, still protesting Heller.

That’s 7-2 for incorporation; 6-3 for incorporation via the Due Process Clause; 5-4 for full incorporation.  Alito hasn’t yet written a majority opinion from the February sitting, so he’s due.  But I wouldn’t be surprised if the Chief or Scalia end up as the author.  Nor would I be surprised if any or all details of my prediction above, except for the 5-4 for full incorporation, will prove completely wrong.

Okay, it’s go time.  If you’re in DC, come visit me–or, better yet, get in line!

Tagged with:

MONDAY MONDAY MONDAY!

Posted in Anticipation, Kagan Nomination, Supreme Court Side Walk by Mike Sacks on June 25, 2010

Monday’s going to be a doozy.  Last day of the term.  Stevens’s last day ever.  Decisions on Guns and God (Gays was decided yesterday), as well as a bit of man v. machine and what may be the financial industry’s own Citizens United.

But that’s not all!

About two hours after the Court lets out for its summer recess, the Senate starts its preseason tryouts with Elena Kagan.

I plan on being in the Courtroom and the hearing room.  And my liveblogging the latter will hopefully be made more colorful by my sleepless Sunday night on the Supreme Court Side Walk.

That’s right: I will be conducting a my own final F1@1F campout for the term.  I suspect it will be a fun one, as the Guns and God oral arguments had the earliest and most enthusiastic lines of the term – and Monday’s certainty of those decisions and the drastically warmer weather (plus the prospect of a stately nonagenarian screaming, “I’m Outta Here!” to a captive audience, tossing reams of paper into the air in a sign of aged defiance) point to a big turnout.

I’d love to see some F1@1F readers out there, too.  If you’re planning on coming to the sidewalk, please do let me know.

Friends of F1@1F: Interview w/ Toobin & McDonald Esoterica

Posted in F1@1F Friends, Law and Politics by Mike Sacks on April 13, 2010

I should have anticipated that only the second installment of “Friends of F1@1F” would be a bit of a deviation from its mission to highlight the blogs of those I’ve met in line.  This week, I bring you an interview with Jeffrey Toobin by Anthony Vitarelli, a pre-F1@1F friend of mine who gave me my blogging start at a now-defunct political blog that he founded and edited.

Here’s an excerpt from the interview:

Vitarelli: [...] I’m curious what your thoughts are on what has made Justice Stevens effective at garnering majorities in cases like Hamdan and Boumediene? If this President were seeking to replicate that aspect of Justice Stevens’s temperament, what would he look for in a nominee’s career to date?

Toobin: One of the myths of Supreme Court confirmations, or Supreme Court appointments, is that there are very good predictive tests of how people will turn out as justices. I mean, look at Justice Stevens. Justice Stevens started out on the bench as kind of a lone eccentric and turned into a tremendous consensus builder. Through the course of all his decades, there were a couple of different kinds of justices that he was.

Obviously, it would be best not to nominate a reclusive scholar, but it is hard to predict what kind of personality would move the very small electorate that is the Supreme Court, especially when you’re largely talking about only one persuadable target. That’s really guesswork. Any nominee that is nominated in 2010 is likely to serve with many justices whose identities we don’t even know yet. All this talk about the kind of personality you want is really guesswork at best.

Vitarelli: In terms of the current careers that potential nominees have, the last nine have been sitting judges on circuit courts. How has that fact helped or hurt the Court as an institution? What advice would you give to the President on this point?

Toobin: I think Obama is right that it is time to end the circuit judge monopoly on the Supreme Court. Historically, the justices have not all come from the appellate court bench. Personally, I don’t think the Supreme Court should be the top step on the civil service ladder for judges – it’s a different job than other kinds of judges. And it’s no coincidence that the court that decided Brown vs. Board of Education didn’t have one person on it that had ever been a judge on any court before that. I think judges with legislative, executive, and business experience would be very good.

Vitarelli: Do you think that the fact that 2010 is an election year will affect which person the President nominates for the Court?

Toobin: I don’t think so. We operate in a 24-hour, 365-day political and news cycle. So I don’t think 2010 is much more politically incendiary than 2009 was. Democrats and Republicans fight all the time, that’s just the world we live in. And I don’t think it matters much.

I don’t know if Obama has actually committed himself to ending the circuit judge monopoly on the Supreme Court with his next nominee.  I support the revival of politicians and practitioners on the Court, but am wary of starting that trend with Stevens’s successor.  Stevens’s role on the Court as the senior associate justice and the liberal bloc’s leader has become too valuable for Obama to choose a nominee that possesses insufficient institutional knowledge, pre-existing gravitas, and political skills to step right into Stevens’s shoes.  There are surely non-circuit judges that could ably fill the Stevens seat, but none of them are on Obama’s shortlist.  The President would do well to wait for Justice Ginsburg’s retirement to start experimenting with unknown quantities.

Today’s second Friend of F1@1F is Sabrina Ghaus.  Sabrina was one of the thirty-some high school students from Cupertino, CA, who camped out overnight for the McDonald argument on March 2.  Below is an excerpt from her reflections on that cold, happy night:

The last time we walked by the marble steps of the Supreme Court, it was 4:30 pm and the late afternoon sun shone lazily in the sky. “Lazily,” because it couldn’t be bothered to provide us with any warmth. The weather itself was briskly chilly.

We sat in a group, 32 members strong on the cold marble, huddling for warmth.

“Do you guys want to camp out?” Mr. Chiang asked.

My eyes widened. YES, I said under my breath. PLEASE.

There was chatter and noise as people argued and complained about the cold.

“Can we go back to the hotel? It’s not worth it!” “But what if we WANT to sleep outside?” “Can we come early in the morning?”

And after about 20 minutes of useless argumentation, it was settled. Those of us who wanted to would camp out. The rest would stay at the hotel.

I couldn’t believe it was really happening.

If you, too, have a story from the Supreme Court sidewalk, please do write to me.

SCSW II: FREEBIRD!

Posted in Supreme Court Side Walk by Mike Sacks on March 9, 2010

For the second installment of Supreme Court Side Walk from last week’s McDonald v. City of Chicago line, F1@1F presents several University of Maryland Law students demanding Freebird from the justices:

See the first SCSW here.

SCSW I: Hellerspotting @ McDonald

Posted in Supreme Court Side Walk, Vox Populi by Mike Sacks on March 5, 2010

Welcome to F1@1F’s first installment of Supreme Court Side Walk.  Come back over the next few days for more clips from the McDonald line.

On Monday night, Dick Anthony Heller, the named plaintiff in the landmark Second Amendment case D.C. v. Heller, dropped by to spread good cheer to the line with cough drops and autographed leaflets.  At one point, he even blessed my own chair with his presence!

Here he is giving an impromptu civics lesson on Women & Guns to Monta Vista High School students from Cupertino, CA:

Come the morning, Mr. Heller reappeared…at the front of the line.

One can’t blame Heller for expecting our goodwill: after all, McDonald was the sequel to the case that made him a gun rights hero.  Nevertheless, no amount of autographs, cough drops, or civics lessons could substitute for the front of the line’s hard-won right to keep and bear single-digit placeholders.  Moments later, he respectfully stood down.

More SCSW spots coming soon.

Follow

Get every new post delivered to your Inbox.

Join 113 other followers

%d bloggers like this: