Thursday, June 24, 2004


Our sources are telling us that Theodore Olson resigned today as Solicitor General of the United States. Olson's wife Barabara was a passenger on American Airlines flight 77 when Muslin extremists crashed the plane into the Pentagon during the September 11 terrorist attacks.

Olson has been an able and effective advocate before the Supreme Court since President Bush appointed him as Solicitor General in 2001. We thank him for his service to the country and the rule of law, and wish him well in his future endeavors.


We'll let the Associated Press's blatant partisan bias speak for itself:

Chief Justice H. Rehnquist and Justices Sandra Day O'Connor, Anthony M. Kennedy and Clarence Thomas agreed with Scalia. On the other side were four of the court's more moderate justices: John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen Breyer.

UPDATE: Subsequent versions of this story have been edited to remove the earlier reference to four of the Court's left-wing activists as "more moderate". Apparently the partisan liberal media believes its bias is more effective when hidden.


Today's five Supreme Court decisions leave seven to be decided this Term. The Court will issue decisions in some or all of these cases on Monday.

The seven remaining cases (and the sittings in which they were argued) are the three terrorism-related cases (Apr.), Sosa (Alien Tort Statute) (Mar.), Ashcroft v. ACLU (Child Online Pornography Act) (Feb.), and two Miranda warnings cases (Dec.).

Justice Thomas is the likely author of both Miranda cases because he has no other decisions from the December sitting.

Justice Breyer is the only Justice without an opinion in the February sitting, so he'll likely be writing Ashcroft.

Justice Souter is the only Justice without an opinion in the March sitting, so he he'll likely be writing Sosa.

April has the three terrorism cases and three Justices -- the Chief, Stevens and O'Connor -- without opinions from the sitting.

The number of majority opinions for each Justice for the Term so far (and giving both Stevens and O'Connor credit for the campaign finance case) are:

Rehnquist: 7
Stevens: 7
O'Connor: 7
Scalia: 9
Kennedy: 7
Souter: 7
Thomas: 7
Ginsburg: 9
Breyer: 7
Per curiam: 1

There's speculation that Kennedy lost a majority to Ginsburg in the Tax Injunction Act case, so if you bump those two to 8 each, the predictions for the remaining cases work out fairly well with respect to Term-wide distribution of assignments (i.e., 8 for everyone except for Scalia and Thomas, with 9 each).

Monday, June 21, 2004


The four relatively uneventful Supreme Court cases decided today (by Ginsburg, Thomas (2) and Kennedy) leave twelve to be decided this Term, with the Court coming back on Thursday of this week to issue more opinions.

The twelve cases (and the sittings in which they were argued) are the three terrorism-related cases (Apr.), Sosa (the Alien Tort Statute case) (Mar.), the Cheney Energy Task Force case (Apr.), a case involving the retroactive applicability of the Apprendi/Ring rule on habeas (Apr.), another case involving the retroactive applicability of a death-penalty sentencing rule on habeas (Feb.), this year's version of the Child Online Pornography Act (COPA) case (Feb.), two Miranda warnings cases (Dec.), a death penalty case involing mitigating evidence of mental illness (Mar.) and a case asking whether Apprendi applies to upward departures from statutory sentencing ranges that are in addition to the statutory maximun sentence (Mar.)

Everyone thinks that Thomas is writing both Miranda cases because he has no other decisions from the December sitting.

Breyer is the only Justice without an opinion in the February sitting, so he'll likely be writing one of the two (presumably the COPA case). The Chief and Stevens have already written twice in the sitting, so each is unlikely to be the author of the other one.

Souter is the only Justice without an opinion in the March sitting, but with three cases outstanding, and no Justice having yet written more than once in that sitting, it is impossible to even narrow down the range of authors for the highly anticipated Sosa opinion. As always, the action is in the extras!

April matches up nicely with five opinions, including the three terrorism cases, remaining for five Justices without opinions from the sitting -- the Chief, Stevens, O'Connor, Scalia and Kennedy. We would be surprised if Scalia wrote in Cheney after the trumped-up recusal controversy, but as one of the leading voice in the Court's Apprendi line, he may have drawn that one. In other words, there is still a lot of room for the three liberals of this group to do some real damage in the war on terror.


The New York Sun reports on a speech given yesterday by Second Circuit Judge Guido Calabresi:

WASHINGTON — A prominent federal judge has told a conference of liberal lawyers that President Bush’s rise to power was similar to the accession of dictators such as Mussolini and Hitler.

“In a way that occurred before but is rare in the United States…somebody came to power as a result of the illegitimate acts of a legitimate institution that had the right to put somebody in power.That is what the Supreme Court did in Bush versus Gore. It put somebody in power,” said Guido Calabresi, a judge on the 2nd Circuit Court of Appeals, which sits in Manhattan.

“The reason I emphasize that is because that is exactly what happened when Mussolini was put in by the king of Italy,” Judge Calabresi continued, as the allusion drew audible gasps from some in the luncheon crowd Saturday at the annual convention of the American Constitution Society.

“The king of Italy had the right to put Mussolini in, though he had not won an election, and make him prime minister. That is what happened when Hindenburg put Hitler in. I am not suggesting for a moment that Bush is Hitler. I want to be clear on that, but it is a situation which is extremely unusual,” the judge said.
Incredible. The leftist mind apparently can warp any reality into support for its twisted politics, even (as in this case) producing the exact opposite of what actually happened in the external world. How Calabresi can turn the SCOFFLAw's attempted Mussolini-like installation of Albert Gore as our president, contrary to the results of the election, into a fictitious Mussolini-like installation of President Bush is a testament to the powers of the mind to disregard the actual world. Bear in mind that this man is making up constitutional law for us on a daily basis. If his mind can perform these feats of counterfactual "creativity" with the objective facts of history -- which can be documented and refuted by the ordinary methods of empirical investigation -- just imagine what he is capable of in creating, under the guise of "construing," abstract legal rules that require a modicum of intellectual honesty to apply faithfully.