Wednesday, November 27, 2002


Help the Fourteenth Circuit crack the mystery of Goedel's Last Theorem on the United States Constitution. The Fourteenth Circuit's classic article on this legal puzzle is now available in the archives.

Tuesday, November 26, 2002


Readers of the old version of this site will recall that we were big fans of the now-cancelled CBS television series "First Monday." Taking our cue from Justice Hoskins's penchant for limerick poetry, and in honor of the show's realistic and even-handed treatment of Supreme Court practice, we ran a contest just before our hiatus for best Supreme Court limerick. This entry, although on the mean-spirited side, is the best of the submissions:

There once was a Justice named Breyer,
Who was either a fool or a liar.
He re-wrote the laws
To the leftists' applause.
I pray he will quickly retire.

Please continue to e-mail us your limericks, and we'll post the best ones on the site.

Monday, November 25, 2002


After a year's adjournment, the Fourteenth Circuit -- the first Supreme Court commentary web log -- announces its return. Stay tuned to the Circuit to read quick and accurate analysis of Supreme Court developments.

In the meantime, for those new to the Fourteenth Circuit, we've reposted in the archives a sampling of our past commentary.


It is not every day that you see four justices joining a written opinion in effect opposing a denial of certiorari. Yet today we have Justice Breyer, joined by Justices Stevens, O'Connor, and Souter, opining that cert. should be granted in Overton v. Ohio, No. 00-9769, and the case summarily reversed as contrary to Supreme Court precedent, but nevertheless voting to deny the petition for cert.

On the one hand, Justice Breyer's "Statement respecting the denial of the petition for writ of certiorari" can be seen as a useful reminder to counsel that establishing error on the merits of the decision below is usually secondary to other factors affecting cert.-worthiness. Yet at the same time, the "statement" is confusing. As a formal matter, a summary reversal requires a cert. grant in any event, and it is at least questionable whether it makes sense to vote to deny cert. when one has expressly opined that cert. should be granted. After all, as a logical matter, the decision whether to grant argument or to reverse summarily is separate from the question whether cert. should be granted at all.

POP QUIZ (originally posted 6/29/01)

Quick -- name a recent case in which a court rewrote a statute by inverting the meanings of "may" and "shall not" and adding to the statute an artificial cut-off date that it manufactured from whole cloth. Okay, you get full credit if your answer was the SCOFFLAw's first decision in Bush v. Gore. But we were actually thinking of Zadvydas v. Davis, Nos. 99-7791 and 00-38, decided yesterday on the last day of the Supreme Court's October Term 2000. The case involved a federal statute providing that "[a]n alien ordered removed [and who meets certain conditions, such as being a risk to the community] may be detained beyond the removal period." Jusstice Breyer wrote the opinion for a 5-4 majority. He determined (presumably again applying his own secret language, see THE KING'S ENGLIGH, below) that this statute actually means that such an alien "shall NOT be detained for more than six months beyond the removal period." Little more needs to be said to show the absurdity of the Court's decision, which was apparently motivated by its newfound solicitude for criminal aliens. The Fourteenth Circuit agrees with Justice Scalia that there is no constitutional "right of release into this country by an individual who concededly has no legal right to be here." But even assuming arguendo that reasonable jurists could differ over the constitutional question, there was no justification for the Court to avoid it by rewriting the statute to suit its own political agenda.

BIG DAY IN WASHINGTON (originally posted 6/28/01)

Today was scheduled to be the last day of the current Supreme Court Term, and the Court delivered a mixed bad of results with its final four opinions. The Fourteenth Circuit is pleased to see the High Court's aggressive enforcement of what command-economy liberals certainly view as two of the Bill of Rights's ugly stepchildren -- the right not to have private property taken without just compensation and the right to free speech of a commercial character.

These events were somewhat overshadowed, howver, by th eagerly awaited court of appeals decision in the Microsoft antitrust appeal. The D.C. Circuit sensibly rejected the government's economically and legally untenable theory that Microsoft had attempted to monopolize the market for internet browsers, while properly respecting the different roles of the trial and appellate courts by deferentially reviewing Judge Jackson's findings of fact and acceptihng his conclusion that Microsoft's bullying behavior in the Intel-compatible operating systems market had no pro-competitive justifications.

HABEAS HOCUS POCUS (originally posted 6/26/01)

There's really not much to say about INS v. St. Cyr, No. 00-767, beyond the glaringly obvious points set out so ably by Justice Scalia in dissent. But we can't resist recapping some of the highlights of the Court's "reasoning." The Court is in rare form.

Justice Stevens has his work cut out for him in having to reach the conclusion that habeas is not a species of "review" for purposes of a statute that expressly refers to "REVIEW [of deportation orders] by habeas corpus proceedings." 8 U.S.C. sec. 1105a(a)(10) (emphasis added). But Stevens is up to the task! As noted by Justice Scalia, the Court's primary tool is to set out the relevant statutory provisions in a needlessly confusing and illogical way, not even starting to quote the statute until the eighteenth page of the slip opinion and scattering the quotes piecemeal throughout the balance of the opinion. In fact, the Court never even bothers to explain how its holding is to be squared with the express statutory reference to habeas "review" quoted above. We marvel at Justice Stevens's interpretive prowess: clearly if the Congress had intended to eliminate custody of review by habeas corpus it would have been much clearer than the highly ambiguous "ELIMINATION OF CUSTODY REVIEW BY HABEAS CORPUS" provision it actually enacted in AEDPA sec. 401(e).

The Stevens constitutional exegesis regarding the Habeas Suspension Clause is another tour de force, managing to rewrite the constitutional text, disregard its history, and warp the subsequent case law all at once.

Finally, it's worth taking a step back and considering the underlying INS discretion not to deport whose withdrawal St. Cyr claims was prospective. We're talking about a made-up rule based on a statute that on its face applies only to exclusion proceedings, not deportations. How ironic that the habeas right is being stretched in defense of patently unlawful government action.


Mandumbass is an extraordinary writ issued periodically by the Fourteenth Circuit to news outlets that report denials of certiorari as if they were affirmances on the merits. Today's writ is issued to the Washington Post for its article, "Klan's Right to Participate in Mo. Program Upheld." That article "informs" its readers that "[i]n a separate decision today, the [C]ourt allowed the federal government to enforce" certain air pollution regulations. "The [C]ourt, without comment, turned down arguments by seven [S]tates and a number of power companies that the rules were improperly set by the Environmental Protection Agency."

The writ shall issue forthwith.

JUSTICE BREYER LANGUAGE-WATCH UPDATE! (originally posted 6/18/01)

Consider the following difficult question of statutory interpretation: Does a statute governing "State executive and legislative elections" apply to federal elections for United States Senator? We would have thought the answer was obvious, but Justices Breyer and Ginsburg continue to struggle in their ongoing effort to recognize the distinction between the States and the national government.

Duncan v. Walker, No. 00-121, deals with a provision of the Antiterrorism and Effective Death Penalty Act. That statute tolls the time for the filing of a federal habeas petition while "State post-conviction or other collateral review" is being sought. The majority properly declined to reduce the words "State post-conviction or other" to an utter nullity by allowing "collateral review" to swallow all post-conviction review, State or federal (here, a federal habeas petition). The dissenting justices, however, conjure a bogus ambiguity and quickly proceed to do what they do best -- argue policy.

Come to think of it, though, Justice Breyer does not expressly state in his dissent that he is construing the statute in English. See THE KING'S ENGLISH, below. His Duncan dissent can be seen as spectacularly corroborating the Fourteenth Circuit's bold conjuecture that Justice Breyer often interprets statutes under the rules of some private, non-English language of his own invention.

We will provide further updates on this issue when new evidence comes in.

HIGH KYLLO-WATT LAMPS (originally posted 6/11/01)

It's never a pleasant task for any right-thinking person to have to pick between (1) supporting a loophole-lawyer's effort to loose a criminal, and (2) disagreeing with Justice Scalia. So it is with some trepidation that we have to criticize the Court's holding today in Kyllo v. United States, No. 99-8508, the marijuana-lamps surveillance case. We are somewhat consoled, however, by our confidence that if he had been writing on a blank slate, Justice Scalia would have done the obvious and instructed Mr. Kyllo that he was welcome to sue if he was upset about a Fourth Amendment violation, but that it has no bearing whatsoever on the validity of his criminal prosecution.

Call us crazy, but we don't see how standing outside a house and passively collecting emanations therefrom is a "search" of the house simply because the collected radiation gives rise to an inference of illegal activities in the house. The use of "sense-enhancing technology" may or may not be a legitimate legislative concern, but it does not create a search where there was none before. Yet we learn from the Court that henceforth, "obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area, constitutes a search -- at least where (as here) the technology in question is not in general public use." Slip op. at 6-7 (internal quotation marks and citation omitted).

This is nonsensical. Our heart goes out to those convicts wasting away in prisons as a result of nearsighted police officers viewing incriminating evidence through open windows because the policemen were wearing contact lenses before they became sufficiently prevalent to have entered "general public use." As to those scofflaws who were caught by contact-lens wearing officers AFTER they came into public use, on the other hand, well tough luck . . . obviously not a search.

THE KING'S ENGLISH (originally posted 6/11/01)

The Court handed down the Don King RICO case today, unanimously holding that the plaintiff has made adequate "enterprise"-related allegations. Cedric Kushner Promotions, Ltd. v. King, No. 00-549.

For some reason, Justice Breyer feels the need to explain repeatedly that he is construing the RICO statute as an English-language document. See slip op. at 3 (twice); cf. also id. at 4 (evaluating the statutory language "linguistically speaking," which is always a good way to do so), 5 (same). Thus, for example, Justice Breyer notes that "[t]he statute's language, read as ordinary English, suggests th[e] principle [that the RICO 'enterprise' must be distinct from the RICO 'person']." Id. at 3. He might have gone on to add that the statute's language, read as German, is a string of unintelligible gibberish.

Acutally, however, these seemingly gratuitous references to the English language might go a long way toward explaining many of Justice Breyer's other statutory interpretation opinions. Our harsh judgments of some of those opinions were premised upon the now-questionable assumption that Justice Breyer had been reading the statutes at hand as English texts. See, to take an arbitrary recent example, Egelhoff v. Egelhoff, No. 99-1529 (Mar. 21, 2001) (Breyer, J., dissenting) (arguably construing the ERISA preemption provision according to the rules of some foreign language). We resolve to be more sensitive in the future to the possibility that Justice Breyer is construing statutes and constitutional provisions in a perfectly reasonable, non-results-driven way in some private language of Breyer's own creation. There is good reason to believe, incidentally, that such language does not permit the use of footnotes.

POLLARD WANTS A COHERENT RATIONALE (originally posted 6/4/01)

The good news is that the Court got it right today in ruling that "front pay" awards are not subject to the $300,000 cap in Title VII cases. Pollard v. E.I. de Pont de Nemours & Co., No. 00-763. The bad news is, well, everything else in the opinion.

The Court holds that a "front pay" award is not compensatory (slip op. at 1, 9). This is surprising, because such awards obviously compensate the plaintiff for "future pecuniary losses," one of the statutorily enumerated categories of compensatory damages. (The Court nods to the obvious by noting that this reading would indeed seem natural "[i]n the abstract." Slip op. at 8.)

Here's what's really going on in what should have been a simple case. The statutory cap imposed by 42 U.S.C. sec. 1981a(b)(3), which the Court does not anywhere quote, applies by its terms only to compensatory damages "awarded under this section." But, as the Court notes, there was no question here that front pay can be independently awarded under another section of the statute, section 706(g), 42 U.S.C. sec. 2000e-5(g). So the cap is facially inapplicable even if the underlying damages are compensatory. Which they are.

We hope this clears everything up.

RECENT DEVELOPMENTS IN GOLF LAW (originally posted 5/29/01)

Golf lawyers reading today's decision in PGA v. Martin, No. 00-24, have understandably focused on the Court's bombshell holding that walking is an inessential element of tournament gold. Less noticed, however, are a number of important aspects of that case that could substantially affect the development of gold law in the years to come. For example, the Court's long-awaited definition of "shot-making," ("using clubs to cause a ball to progress from the teeing ground to a hole some distance away with asa few strokes as possible," slip op. at 21) resolves a circuit split in favor of the Third Circuit and against the Eighth, which had held that a player engaged in "shot-making" even if he was trying to maximize the number of strokes to put the ball in the hole.

The Court demonstrated admirable restraint in refusing to reach out and decide the vexing and politically charged "hole-diameter" question (slip op. at 20) that has troubled commentators for so long and that promises to continue to keep golf-law practitioners busily employed for years in countless lawsuits.

Of course, the full implications of the Martin case will only become clear as the case is applied in the courts of appeals. We can hope for further guidance in this area next Term, when the Court tackles another important case in which it has granted certiorari to resolve a circuit split over whether golf or bowling is the more boring sport.

MAD HATTER (originally posted 5/21/01)

Justice Scalia properly rejected the majority's "discrimination" rationale in United States v. Hatter, No. 99-1978, the judicial pay-raise case under the Compensation Clause that the Court handed down today. But how is this aspect of Justice Scalia's opinion to be squared with his joining of the majority's mootness holding in Part V? The key paragraph in that section of Justice Breyer's opinion rests upon the following hypothetical: He asks what would would happen if a pay cut affecting some judges were offset by a later pay raise affecting all judges. He says that this "would leave the first group permanently" behind the rest of the judges. So what? Congress could clearly, consistent with the Compensation Clauser, raise the salaries of some, buyt not all, federal judges, leaving the other judges' salaries flat. That would similarly "leave the first group permanently" behind. This has nothing whatever to do with whether anybody's "Compensation" has been "diminished."

THE TRIBE HAS SPOKEN (originally posted 5/01)

If only the Constitution had a good index, he could see that "abortion" doesn't occur anywhere in it . . . .

From the Boston Globe:

"Laurence Tribe, Harvard Law School: Although I'm a well-informed and highly educated reader, I experience enormous frustration, especially on Sundays, in locating things within the Globe. Today, I wanted to know where I could find information about which movies are playing where. In the classified Index on page A-2, I looked under Arts (no entry), under Films (no entry), and under Movies (no entry). The index proved useless. I was about to give up when I happened upon the movie listings in Arts Etc., Section M. If I had this problem despite my background and general literacy, I imagine many others experience the same problem."