I'm sorry, I must have misunderstod the question. I thought this related only to the issue of a straightforward declaration of war (and thus changing the legality of a variety of executive actions during a state of war) by Congress.
I agree with you that the OSS did a bunch of off the books stuff during WWII that looks fishy in retrospect even during wartime. Spying on U.S. citizens without warrants or cause, that sort of thing. The Japanese detention camps was validated by the Supreme Court but has since been condemned by history; pressuring our Western Hemisphere allies to do similar things to their own citizens was even fishier. And the list goes on.
I confess I'm a little bit surprised that the rate is that high (if I read Scotusblog's memo correctly, about 10% higher than the reversal rate for the other Circuits), but again I think the capital punishment angle would account for a lot of that as the Ninth really does stand apart on that issue as compared to its sister circuits -- a high number of states in its jurisdiction with capital punishment on their books but a high occurrence of judges on the Circuit who have significant qualms about capital punishment in the first place. I can recall one opinion in a habeas case by Justice Scalia in which he focused particular ire and irritation at the Ninth. Scalia indulges in invective much more than any of his colleagues (although Justice Kagan is starting to give him a run for his money) so again this may not be the most objective, reliable data point from which to draw a conclusion.
On further consideration, I wonder if the high reversal rate has something to do with the fact that the Supreme Court gets to pick and choose which cases it reviews. If there was something approximating consensus among the nine Justices that a particular case had been decided correctly, it's doubtful that they would select that case for review.
But it could very well also be the case that despite these things, the Ninth is appreciably more out of step with the Supremes than its sister Circuits and that wardsmith's research bears out that proposition. Thanks for doing the tedious work of looking into it, WS!
Jason -- what if there were real, independent judicial review, but that review was also kept secret and non-public?
Not enough? Would it be enough if there were appointed, adverse counsel participating as advocates for the targetted citizen, using the same evidence that was made available to the government requesting the authorization to kill? (Still a non-public proceeding.)
Still not enough, what if the government had to make a demonstration to the independent judicial court of what attempts had been made to apprehend and return the citizen to the U.S. for criminal prosecution here? (Again, a non-public proceeding.)
"Laughed out"? None. The Supremes take their work seriously, as they should. If they see error of law coming from the Ninth, that is a matter to be addressed with sobriety, not contempt or derision.
I don't know how many 9th Circuit decisions are reversed. I suggest that if you undertake such a study, you would be well-advised to separate out capital punishment cases from the rest. Should you do such a thing, I would predict that the reversal rate is roughly the same across all the Circuits. Perhaps I would be wrong.
Now, it is true that a disproportionate number of the active Circuit Judges on the Ninth Circuit were appointed by President Bill Clinton and that the Circuit has a reputation for being particularly liberal. But I'm not all that confident that the liberal reputation of the Ninth has been all that well-earned (at least, outside of the capital punishment arena). It is the case that some individual Judges on the Ninth (Reinhardt, Pregerson, Paez) are unusually eloquent and powerful in their opinions, and these tend to be lionized by liberals and demonized by conservatives. But the righties have their heroes on this bench, too (Kozinski some of the time, O'Scannlian, Bybee).
The Ninth Circuit opinion in this case was decided by a panel of two Clinton appointees and a Bush II appointee. Note that the panel decision was unanimous.
These are Justice Douglas' words, not necessarily TVD's, although I do interpret his reference to them above as an endorsement by TVD of their [putative] truth.
My own declarations and affidavits use the religion-neutral form of the oath.
At time, I feel that the "...so help you God" is a bit presumptive in that it simply assumes that the witness believes in God in the first place. But so what? The witness still is required to tell the truth and that's what counts. The penalty of perjury applies with equal force to all witnesses, regardless of their religious views.
I treat the "...so help you God" clause (when imposed upon me or my clients) as an irritating surplussage. No need to make a fuss nor any profit to be had in doing so.
Depends on the kind of brief you're doing, of course. For instance, in California's appellate courts, an appellant's or respondent's opening brief is limited to 14,000 words. Or, in California's trial courts, most motions must be 15 pages of argument or less. These are normally generous enough limits that I don't need to crimp my style, but sometimes more complex things come up and I need to uncomfortably squish things down.
The limit on the slippery slope is the political will of the majority to impose limits on the slope, in either direction. If the majority finds imposition of civil liabilty on Christian Car Lube guy intolerable, it will exempt religion from the antidiscrimination laws.
Ignoring the silliness of the question's premise, that would be an unlawful employment practice. Ought it to be? I think so, but if you're going to argue that the coercion and intrusiveness of antidiscrimination law is simply too severe, then you must argue that the Christian lawyer in that scenario is out of luck.
Without Cam Newton, the game would have been considered worthless. Which tells you something about the NCAA's attitude about its own rules versus the market power of the spectacle it offers. That, of course, is the subject of a different thread (and a cover story on The Atlantic).
Someone who actually is Burt would say, based on the statement of the owner ("it was his way of giving a discount to the poor students from home"), that's national origin discrimination and a violation of 42 U.S.C. ยง 2000a.
Without that evidence, it looks like it could be a discount for knowing Hanzu, which would require a futher evidentiary showing to demonstrate unlawful intent.
While I agree with you about Buddhism, there are those who would say that "anti-religion" is making a credible threat at being Established, though. I think a lot of those who have that point of view fog up the difference between secularism and antipathy to religion (generally inadvertently), but that does not mean that there is not a point to be made there.
For instance, as a nonbeliever, I would prefer the President not add "so help me God" to the end of his oath of office. But if the President wants to say it as a religious expression of his sincerity when making the oath, then yes, he can do so, and a lawsuit to prevent him from doing so is both incorrect as a matter of law and misguided.
Neutrality means just that, even if it's sometimes hard to find. I don't think either court here found a truly neutral result.
In all of these cases, I am discussing a practice -- if you prefer, an analysis of the practice is inextricably intertwined with the group identities of the people involved. as the law is written and applied; for purposes of antidiscrimination law, that's a distinction without a meaningful difference.
Refusing to serve Catholics is a practice. Refusing to hire Catholics is a practice. Selling to Latinos on terms different than those offered to African-Americans is a practice. Refusing to sell to whites is a practice. Selling to Jews on terms different than terms offered to Muslims is a practice.
Further, as the Civil Rights Act is written and applied, will-not-serve is treated the same way as will-serve-on-different-terms: the practice is either unlawful or it is not, and race is treated the same as religion. Differences in the moral gravity of differing practices are considered at the remedy stage, not when determining liability.
My question is aimed at getting to how you would see the law changed, as you seem to think that the Constitution mandates special deference to religion in the antidiscrimination laws.
But the CRA treats race and religion as equivalently suspect classifications, wardsmith. Discriminating on the basis of race is exactly as unlawful as discriminating on the basis of religion. I suppose you can argue it should not; see my exchange with TVD below.
Also, I do not think you "choose" your religious faith by way of conscious will any more than you "choose" to fall in love with a particular mate, or than you "choose" to dislike anchovies on your pizza, or than you "choose" green to be your favorite color. Those things happen at a sub-rational level. But that's a whole different topic than what the OP is about.
On “Our Star Chamber”
I'm sorry, I must have misunderstod the question. I thought this related only to the issue of a straightforward declaration of war (and thus changing the legality of a variety of executive actions during a state of war) by Congress.
I agree with you that the OSS did a bunch of off the books stuff during WWII that looks fishy in retrospect even during wartime. Spying on U.S. citizens without warrants or cause, that sort of thing. The Japanese detention camps was validated by the Supreme Court but has since been condemned by history; pressuring our Western Hemisphere allies to do similar things to their own citizens was even fishier. And the list goes on.
On “Poway Prohibits Pedagogical Proselytization”
I confess I'm a little bit surprised that the rate is that high (if I read Scotusblog's memo correctly, about 10% higher than the reversal rate for the other Circuits), but again I think the capital punishment angle would account for a lot of that as the Ninth really does stand apart on that issue as compared to its sister circuits -- a high number of states in its jurisdiction with capital punishment on their books but a high occurrence of judges on the Circuit who have significant qualms about capital punishment in the first place. I can recall one opinion in a habeas case by Justice Scalia in which he focused particular ire and irritation at the Ninth. Scalia indulges in invective much more than any of his colleagues (although Justice Kagan is starting to give him a run for his money) so again this may not be the most objective, reliable data point from which to draw a conclusion.
On further consideration, I wonder if the high reversal rate has something to do with the fact that the Supreme Court gets to pick and choose which cases it reviews. If there was something approximating consensus among the nine Justices that a particular case had been decided correctly, it's doubtful that they would select that case for review.
But it could very well also be the case that despite these things, the Ninth is appreciably more out of step with the Supremes than its sister Circuits and that wardsmith's research bears out that proposition. Thanks for doing the tedious work of looking into it, WS!
"
How does that compare with other Circuits, and does that include or exclude capital punishment cases?
On “Our Star Chamber”
You're right, DD. How could I have been so hopelessly naรฏve?
"
Orton does not suck. It is poor protection by the offensive line.
And a weak arm. And questionable judgment under pressure. Which could, I suppose, be defensibly labeled with the phrase "sucking."
But if the guy had some protection, he'd suck less.
"
Jason -- what if there were real, independent judicial review, but that review was also kept secret and non-public?
Not enough? Would it be enough if there were appointed, adverse counsel participating as advocates for the targetted citizen, using the same evidence that was made available to the government requesting the authorization to kill? (Still a non-public proceeding.)
Still not enough, what if the government had to make a demonstration to the independent judicial court of what attempts had been made to apprehend and return the citizen to the U.S. for criminal prosecution here? (Again, a non-public proceeding.)
On “The Second Second Date Story”
Damn. Must be some dust in here, something in my eye...
On “Congratulations are in order”
Drinks are on Knapp tonight!
On “Poway Prohibits Pedagogical Proselytization”
You can't possibly be. An atheist was the author of the OP.
"
"Laughed out"? None. The Supremes take their work seriously, as they should. If they see error of law coming from the Ninth, that is a matter to be addressed with sobriety, not contempt or derision.
I don't know how many 9th Circuit decisions are reversed. I suggest that if you undertake such a study, you would be well-advised to separate out capital punishment cases from the rest. Should you do such a thing, I would predict that the reversal rate is roughly the same across all the Circuits. Perhaps I would be wrong.
Now, it is true that a disproportionate number of the active Circuit Judges on the Ninth Circuit were appointed by President Bill Clinton and that the Circuit has a reputation for being particularly liberal. But I'm not all that confident that the liberal reputation of the Ninth has been all that well-earned (at least, outside of the capital punishment arena). It is the case that some individual Judges on the Ninth (Reinhardt, Pregerson, Paez) are unusually eloquent and powerful in their opinions, and these tend to be lionized by liberals and demonized by conservatives. But the righties have their heroes on this bench, too (Kozinski some of the time, O'Scannlian, Bybee).
The Ninth Circuit opinion in this case was decided by a panel of two Clinton appointees and a Bush II appointee. Note that the panel decision was unanimous.
"
These are Justice Douglas' words, not necessarily TVD's, although I do interpret his reference to them above as an endorsement by TVD of their [putative] truth.
"
"Lord," once, as in "in the Year of our Lord." Doesn't prove very much one way or the other, IMO.
"
Actually, it's the clerk stating it and the witness saying "I do."
By statute, it's proper to administer the oath either with or without the "...so help you God" portion and the decision about which version to use is at the discretion of the clerk.
My own declarations and affidavits use the religion-neutral form of the oath.
At time, I feel that the "...so help you God" is a bit presumptive in that it simply assumes that the witness believes in God in the first place. But so what? The witness still is required to tell the truth and that's what counts. The penalty of perjury applies with equal force to all witnesses, regardless of their religious views.
I treat the "...so help you God" clause (when imposed upon me or my clients) as an irritating surplussage. No need to make a fuss nor any profit to be had in doing so.
"
Thank you for the feedback. That's the currency I look for.
"
Depends on the kind of brief you're doing, of course. For instance, in California's appellate courts, an appellant's or respondent's opening brief is limited to 14,000 words. Or, in California's trial courts, most motions must be 15 pages of argument or less. These are normally generous enough limits that I don't need to crimp my style, but sometimes more complex things come up and I need to uncomfortably squish things down.
"
Now I know all the work I put into this post was worth it -- TVD is a challenging audience to please. Much appreciated, sir.
On “The Intersection of Government Coercion and Private Discrimination”
The limit on the slippery slope is the political will of the majority to impose limits on the slope, in either direction. If the majority finds imposition of civil liabilty on Christian Car Lube guy intolerable, it will exempt religion from the antidiscrimination laws.
"
Ignoring the silliness of the question's premise, that would be an unlawful employment practice. Ought it to be? I think so, but if you're going to argue that the coercion and intrusiveness of antidiscrimination law is simply too severe, then you must argue that the Christian lawyer in that scenario is out of luck.
"
Without Cam Newton, the game would have been considered worthless. Which tells you something about the NCAA's attitude about its own rules versus the market power of the spectacle it offers. That, of course, is the subject of a different thread (and a cover story on The Atlantic).
"
Someone who actually is Burt would say, based on the statement of the owner ("it was his way of giving a discount to the poor students from home"), that's national origin discrimination and a violation of 42 U.S.C. ยง 2000a.
Without that evidence, it looks like it could be a discount for knowing Hanzu, which would require a futher evidentiary showing to demonstrate unlawful intent.
On “Poway Prohibits Pedagogical Proselytization”
While I agree with you about Buddhism, there are those who would say that "anti-religion" is making a credible threat at being Established, though. I think a lot of those who have that point of view fog up the difference between secularism and antipathy to religion (generally inadvertently), but that does not mean that there is not a point to be made there.
For instance, as a nonbeliever, I would prefer the President not add "so help me God" to the end of his oath of office. But if the President wants to say it as a religious expression of his sincerity when making the oath, then yes, he can do so, and a lawsuit to prevent him from doing so is both incorrect as a matter of law and misguided.
Neutrality means just that, even if it's sometimes hard to find. I don't think either court here found a truly neutral result.
On “Vote”
I like #1 the best, too.
On “What will the myths be in A Song of Ice and Fire?”
King Robb Stark, the Young Wolf who never lost a battle, will be the subject of legends too, complete with the
dastardly betrayal at the Red Wedding
.
The bards will sing sad, melancholy songs about Lady Catelyn
mourning for all her dead children
,
and tales of rousing adventure and magic about Danerys Targaryen's epic bid to return to power.
On “For God So Loveth Ye That His Servant In Plano, Texas Doth Giveth Ye An Affordable Oil Change”
In all of these cases, I am discussing a practice -- if you prefer, an analysis of the practice is inextricably intertwined with the group identities of the people involved. as the law is written and applied; for purposes of antidiscrimination law, that's a distinction without a meaningful difference.
Refusing to serve Catholics is a practice. Refusing to hire Catholics is a practice. Selling to Latinos on terms different than those offered to African-Americans is a practice. Refusing to sell to whites is a practice. Selling to Jews on terms different than terms offered to Muslims is a practice.
Further, as the Civil Rights Act is written and applied, will-not-serve is treated the same way as will-serve-on-different-terms: the practice is either unlawful or it is not, and race is treated the same as religion. Differences in the moral gravity of differing practices are considered at the remedy stage, not when determining liability.
My question is aimed at getting to how you would see the law changed, as you seem to think that the Constitution mandates special deference to religion in the antidiscrimination laws.
"
But the CRA treats race and religion as equivalently suspect classifications, wardsmith. Discriminating on the basis of race is exactly as unlawful as discriminating on the basis of religion. I suppose you can argue it should not; see my exchange with TVD below.
Also, I do not think you "choose" your religious faith by way of conscious will any more than you "choose" to fall in love with a particular mate, or than you "choose" to dislike anchovies on your pizza, or than you "choose" green to be your favorite color. Those things happen at a sub-rational level. But that's a whole different topic than what the OP is about.