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!
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!
I had been intending to take Professor Ginsburg’s Tax I class this coming fall as a capstone to my legal education. When I went to register and saw that his name was nowhere to be found, I figured he might have just taken the term off from teaching, as tenured titans may do from time to time. Turns out his absence was because of a much more serious reason.
A small anecdote: during my first year at Georgetown, I spotted H. Ross Perot’s name etched into the wall inside the entrance of McDonough Hall, the school’s main law building. I did some asking around to find out why he’d be a GULC benefactor. The answer? The Texas billionaire and former presidential candidate wanted to express his appreciation to Marty Ginsburg, his tax lawyer, for a job well done over the years.
My condolences to Justice Ginsburg and her family. I’ll be sitting shiva as I sit on the sidewalk tonight, convinced that Prof. Ginsburg is out there treating his friends old and new to a heavenly meal.
Just because a case has been decided doesn’t mean all issues surrounding it have been resolved. We will be reminded of this on Monday afternoon when Elena Kagan will begin her confirmation hearings by listening to what surely will be more than a few Senatorial earfuls over whether she agrees with the decisions in any of the four big cases the Court will have handed down just that morning.
But there will be other cases from this term that will continue to make hay in our courts and at the ballot box. The Court’s 5-4 opinion in Graham v. Florida invalidating life sentences without parole for juveniles convicted of non-homicide crimes is one such case. Graham has triggered changes–and with changes, challenges–to the criminal law’s political and legal landscape.
For those interested in some compelling post-Graham analysis, please check out Scott Hechinger’s article in the forthcoming issue of the NYU Review of Law & Social Change, now available on SSRN. Scott is a newly-credentialed NYU Law graduate, the 2010-11 Sinsheimer Children’s Rights Fellow, and very good friend of mine. This article is loaded with smart analysis and debatable positions that F1@1F readers will surely enjoy.
My cover story for this week’s Christian Science Monitor is now online:
They are fathers and sons, mothers and daughters, opera lovers and salsa dancers, long-winded pedants and quick-witted conversationalists, cancer survivors and nonagenarian swimmers, West Coasters and East Coasters, Winnebago drivers and airplane pilots. Aside from being nine of the most powerful men and women in the United States, the Supreme Court justices are also a lot like We the People.
But when we talk about the court looking like America, we also mean things such as the justices’ religions, races, genders, and sexual orientations. We mark our progress as a society by the diversity of these traits on the court. And President Obama’s nomination of Solicitor General Elena Kagan makes plain how far we’ve come, and for some, how much further we have to go.
Read the rest here.
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.