USD Federalist society

Judges Love Harry Potter

2005-07-12T17:52:00.000-04:00

Here is a list of times all things Potter showed up in court opinions. Note that this list doesn't include any lawsuit brought against the publishers, or anything where Harry Potter was some type of evidence, or the poor certified public accountant whose name is Harry Potter. This is only a list of references to the books that were not needed in the opinions. If you know of any others please comment.

LEWIS T. BABCOCK, CHIEF JUDGE. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO
Now we get to trial--you know, 'We never said he was an adulterer' . . . . It's outrageous. . . . You have littered the paper in this case, which is now public record, calling Mr. Villescas an adulterer, a nepotist. I'm sorry, it's just outrageous. And then to all of a sudden pull this. You know, it's almost like Harry Potter's invisible cloak.

CHARLES C. LOVELL, Senior United States District Judge. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA, GREAT FALLS DIVISION
For all we know, they and their components could be mathematically based, founded upon indisputable empirical research, or simply the magic of young Harry Potter's mixing potions at the Hogwarts School of Witchcraft and Wizardry.

Cheryl L. Pollak, United States Magistrate Judge. UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
Paulina was interviewed by this Court outside of the presence of her parents, although they both accompanied Paulina to chambers and waited outside the door. In order to make Paulina more comfortable, I did not wear my judicial robe and discussed the Harry Potter books with her

FALL, J.A.D. SUPERIOR COURT OF NEW JERSEY, APPELLATE DIVISION
The parties' daughter, Nicole, is a Harry Potter fanatic. - This was used as proof of good parenting in a custody dispute - I kid you not 373 N.J. Super. 319

Pamela Ann Rymer Circuit Judge
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Harry Potter dry cleaners would all weaken the commercial magnetism of these marks and diminish their ability to evoke their original associations.

Pamela Ann Rymer Circuit Judge
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Neither the parties nor the courts should have to divine whether discretion is conferred. It either is, in so many words, or it isn't. For sure, there is no magic to the words "discretion" or "authority" - but we're not at Hogwarts.

Alex Kozinski (the king)
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
But this is not a Harry Potter novel; there is no charm for making a defendant's constitutional rights disappear.

Janice Rogers Brown (Go Janice!!!)
I respectfully dissent. In 1942, the United States Supreme Court, like a wizard trained at Hogwarts, waved its wand and "plucked the commercial doctrine out of thin air. -Quoting Kozinski Law Review Article

One last thing, below is a Lexis Nexis Core Terms paste:

CORE TERMS: muggle

Kelo - what happened to Stevens helping out the little guy

2005-07-11T12:59:00.000-04:00

Kelo is a mockery, I understand most of the majority don't disagree with me on how to intrepret the constitution, but to me the word "Public" means "public". Not some private corporation padding the pockets of local legislatures.

We've been told by the court that the 50% of americans who believe abortion to be correct can't be helped by the political processs, the 40 % of minorities can't be helped. And such need extra protection for the court. But the small single farmer up against huge corporations, well they can always voice their opinion while they watch the house passed for generation being torn down to make room for another Walmart. It is perplexing to me that these justices who claim to be helping the little guy, are helping big corporations.

In a season of judicial filibusters where the candidates are painted as being in the pockets of corporations, the liberal wing of the court was the one helping these corporations out. No outcry from congress or the media either. Imagine if Thomas was the one write the majority opinion, people would be freaking out. But I forget Ginsburg is never wrong (even though she thinks Mother's Day to be unconstitutional).

I can go through this opinion and give a hundred reasons why Stevens and the court are wrong, but tt the end of the day I am only comforted by the thoughts of then-associate justice Rehnquist in Garcia: "I do not think it incumbent on those of us in dissent to spell out further the fine points of a principle that will, I am confident, in time again command the support of a majority of this Court."

A couple thoughts on Raich

2005-06-22T15:59:00.000-04:00

US Supreme Court found that the federal government has the power to regulate medical marijuana. This issue was a difficult one for me, as it was for many, because though I despise the increase use of marijuana, I despise more the Federal Government's growing power.

Earlier I predicted it would come out 6-2 for the Federal government. (I was close.) At the time I didn't realize despite the November argument date, it was technically on the December case list. I figured the four liberal justices would ignore their hippy friends and allow a huge massive federal government, and that w/o the Chief, Scalia and Thomas would go to wild and force O'Connor and Kennedy to swing over. Well, not quite how it came down.

5 person majority (Stevens-who wrote for them, Souter, Ginsburg, Breyer, and Kennedy) w/ Scalia in concurrence (wow Scalia), O'Connor dissenting (joined by Chief and Thomas - who wrote his own dissent).

Main gist of the majority was: (1) that this was similar to Wickard, (2) the standard of the drug act can be change through political process, (3) difficult to distinguish between illegal and legal marijuana.

Scalia at first glance is very surprising, but then it is not that tough to see. He has no sympathy for marijuana smokers, he messed the constitution up previously in a Smith peyote case. He argues based on the incidental effect of non-interstate commerce, again the Smith case echoes, and a reoccurring them of both the Rehnquist and Burger Courts, is the theory of incidental effects. And he is trying to get a hearing for Chief Justice, I don't think overruling drug legislation and limiting federal (most notably congressional) power would go over well during judiciary hearings. Personally, I believe he would have made the deciding vote in the matter, thus Kennedy hadn't swung, I believe he wouldn't have swung either. Why put yourself on the chopping block if it doesn't make a difference.

True to form, Thomas got it. He has stuck to his guns, all of the other majority from Lopez and Morrison have gone away at least once. Rehnquist and O'Connor went to far far away during the Family Medical Leave Act decision, and now Kennedy and Scalia join in forgetting the principles laid down in Lopez and Morrison.

Most significantly this decision shows the lack of impact Rehnquist has had on the court. Every important decision, dealing with congressional power, judicial restraint, even most of the establishment clause decisions, all go the wrong way furthering the Supreme Court jurisprudence from the Constitution. The minor victories of Lopez and Morrison didn't really limit Congresses power, instead just gave them hops to jump through to continue on their quest for more power. Or as Justice Scalia stated: it causes the court to check Congress's homework.

To the ACLU, It doesn’t matter if it is private property the First Amendment still applies.

2005-05-13T13:24:00.000-04:00

Sorry to break it to you ACLU, but it actually does matter. ACLU has brought suit against the City of Salt Lake and the Church of Jesus Christ of Latter-Day Saints for restricting behavior and speech of street preachers to walk through the Churchs property. See Article: http://www.sltrib.com/utah/ci_2709383

Once a street with public sidewalks, a portion of Main Street Salt Lake City (highlighted in Blue) was purchased by the Church of Jesus Christ of Latter-Day Saints to create a plaza with a reflecting pool (A in pic). The City received more than market value for the land, but reserved an easement in the plaza for a public walk way (Red line in the pic below). The plaza was meant for a reverent church-like setting. Church security would escort loud, disruptive persons off of the premises. However, the ACLU brought suit against the City and the Church claiming an abridgement of the Freedom of Speech.

A public walkway is a traditional public forum. In these forums, the First Amendment Right to free speech must be enforced. See Perry. Thereby, in such a forum, loud and disruptive people have a right to express themselves. The 10th circuit court told the City to either sell back their easement, or permit the Street preachers to use the walkway. So the City followed suit and sold the easement back the Church. The Church, in exchange for the easement, gave both money as well as three acres of land to the city for a community center.

The Street Preachers have continued to be allowed around the Plaza, and Temple Square for that matter (Seen in Pink). The ACLU contends despite it is private ownership the plaza continues to be used by the public and thus the First Amendment applies and speech and behavior rules should be lifted. However, the constitution says "Congress shall make no law..." (which has been incorporated and now means the Government shall make no law), a government cant abridge, but a private party has all the right to control his private land the way he/she wants. Malls for instance can restrict speech and behavior rules even though it is used by the public. Further, the Supreme Court has upheld speech restrictions by private parties who have replaced Government entities in Hurley v. Irish-American Gay, Lesbian & Bisexual Group.

In Hurley the city had put on a St. Patrick Days parade, and then moved operations of it over to a Veterans Council. The council in charge would not allow a group of Gay, Lesbian, and, Bisexuals march in the parade. Justice Souter (Yes Souter for an unanimous Court) upheld the councils right.

ACLU missed an important part of the First Amendment, that being the first word. If what the ACLU is arguing were true, could I be able to kick people off of the sidewalk leading to my front door.

Picture Key:
A: Reflecting pool and Main Street Plaza
B: Tabernacle
C: Salt Lake Temple
D: Church Office Building
E: Joseph Smith Building (Owned by LDS Church)
Redline: Walkway, former easement held by City
Blue: Former Mainstreet, now plaza
Pink: Areas where Preachers aren't subject to conditions.

Supreme Court Grants Cert. to Solomon Amend

2005-05-03T11:33:00.000-04:00

The US Supreme Court will hear a case from the 3rd circuit, where they struck down the Solomon Amendment, finding the act violated the school's expressive association and thus the 1st amendment.

The Act states that any school that accepts federal funds must give equal access to military recruiters. This may go beyond just providing a room, if the school sets up student interviews for other potential employers, they must do the same for military recruiters. Harvard Law school has a non-discrimination policy, and they believe the military's "don't ask, don't tell" policy violates their policy, and thus they don't want to allow them in.

The 3rd circuit relied on BSA v. Dale, where the supreme court said that Boy Scouts could prevent a gay man from being a den leader. The court found (per Chief Justice Rehnquist) that the Boy Scouts can express themselves through association and thus could prevent Dale from being a part of the organization. This analysis has many flaws, two of which I'm going to talk about here.

First, in Dale, as a leader, Dale would be representing the Boy Scouts and would have to instill certain values upon the children. The boyscouts had a set of values they planned on instilling in their members and didn't want those values misrepresented. A boy scout leader speaks for the organization. The Military recruiters have no such influence. They are simply, as the other law firms, looking for employees. They will not be wearing the Harvard uniform and misrepresenting them.

Second, the Act is not preventing Harvard from expressing themselves, the school can still say they disagree with the "don't ask, don't tell" policy. The Act is simply asking them to not discriminate against the military. Allowing Military recruiters to recruit is in no way compelling the school to agree with their stance. If Harvard is so big about expressing them selves in this way, let them express without the government's funding. They can take the money, or they can not, it is up to them.

Nowhere in the opinion did the court cite the Dole case (Federal spending case, drinking age must be 21 to get highway funds), where Rehnquist gives the test of Rational Basis as long as the regulation was unambiguous, which this regulation is. Instead they give the regulation Strict Scrutiny, because it infringes on this "Expressive Association."

Though I do believe expressive association is a constitutional right, I do not believe the Soloman act violates it. This will be an interesting decision.

Free Speech in School

2005-02-16T18:39:00.000-05:00

The news is all over Mr. Churchill about what he said. After hearing it I thought two things: One he's gutsy and two he's an idiot. Should he be fired for what he said? No! On top of Tenure and Academic Freedom there is a level of free speech. In all actuality he should have never been fired, from his misrepresentations, and idiotic assumptions he is not qualified. As are many professors at college. Actually I am glad he said it, it will finally bring some attention to schools who reach out after outlandish, radical, and idiotic professors. He shouldn't be fired for his comments, and I don't care if he gets fired or not for his other stuff. But I do hope that other colleges will see this and check some sources before higher someone.

International Court Rulings

2005-01-18T10:45:00.000-05:00

Everyone seems to be talking about the debate that took place last week between Justice Breyer and Justice Scalia (it is on http://www.c-span.org/) about using International Court Rulings in making our own rulings. What I seem to hear from a lot of media is how it would be good to see how another country handled terrorism, POWs, and other issues in making a good decision. Thats funny, because I thought the same thing, but not for a Justice to use, but a policy maker.

Witnessing what other countries have done and the results of those decisions are good for policy makers to use in determining policy. Justices on the other hand are intrepreting law. Law written in this country, by our elected officials, whom we have elected vote to put in. When the court is intrepretting what "cruel and unusual punishment" means, why do we need the help of Isreal? Why would we need the help of France in intrepretting the Interstate Commerce Clause?

The danger isn't in reading or looking to other countries, but when using precedent to push personal ideology and thwarting the purpose of legislation, the will of the majority, and the intent of the framers. The other problem, is justices picking and choosing what they choose from international law. Justice Scalia pointed out that we are one of only 6 countries that allow on-demand abortions, regardless that never got into Roe, Planned Parenthood, or Carhart.

Medical Marijuana

2004-12-13T17:22:00.000-05:00

Funny how the media talks about Ashcroft v. Raich oral arguments mostly about the great uses of Medical Marijuana. Sure most of the public doesn't know how the Commerce Clause works, so it is natural to talk about the case in a different light. But the real issue at this case is federal powers, and how far they reach. Personally I think this is a bigger story. Reading this blog http://federalism.typepad.com/ashcroft_v_raich/2004/11/the_oral_argume.html gave a look inside the oral arguments. Sounds like this whole case is resting of Wickard v Filburn and the distinction thrown on it in Lopez and Morrison.

This will be interesting to see how it unfolds. But it would be hard to throw the law out without overturning Wickard. Thomas has been waiting for this one for awhile. Scalia asked about a number of other laws (EPA, etc.) which rest on Wickard in hopes he may be able to throw them out as well. The Cato Institute wrote a brief which continually quoted New York (written by O'connor) and Kennedy's dissent in Lopez, you know who they are gunning after. Today, the Court reported that Cheif Justice Rehnquist will not be involved in this decision unless there is a tie. Which could be possible if it stays at the usual lines.

We'll have to see.

War in Iraq - The complete column

2004-10-07T11:42:00.000-04:00

The following was written but edited down when published in the news paper "The Volante" here it is in its entirety:
So what you’re saying is except for ending slavery, fascism, nazism, and communism war hasn’t done any good. I am all for people’s right to free speech and to protest the war, but what is great about our country is that I can tell you why you are wrong, selfish, and only worried about your precious unrealistic ideology.
This is the first time I have personally seen people use religion in this argument. This is good, in a secular society, to see that people are at least looking to God when making a decision. What some of the protesters have forgotten is that Christ also said: “Think not that I am come to send peace on earth: I came not to send peace, but a sword” ( Matthew 10:34). As individuals we should hope for peace, long for peace, teach peace, and work for peace. I in no way speak for any religion, organization or anybody else. But I don’t see how we can sit back, in our country with our many blessings brought to us by God, and watch millions die at the hands of evil people.
I know some people don’t like the term “evil”, but when someone is trying to kill my family, or others who have done nothing to hurt anyone else, there is no other word that fits.
Do I want war? No! Do I like war? No- well wait, did Oliver Stone direct it? It is obvious that nobody likes war. But when incredibly horrible things are happening to people (be it the Kurds, people in Rwanda, people in Sudan, or even those people who were enslaved and slaughtered in our own country’s past) something must be done.
The UN wouldn't touch the situation in Iraq because they were making too much money from the Oil for Food "program" (read that as Scandal). (Notice Michael Moore kept that one out of his movie.) France and others didn’t care about the oppressed Kurds or Shiites. Even today, most countries at the UN are far too busy setting up committees to investigate the horrors in the Sudan to determine if “sanctions” should be imposed. Great! By the way, if we have to go through the UN on everything, then we should go to their human rights commission for help. Oh wait, Sudan is on Human Rights Commission. What’s next, Ted Nugent the head of PETA.
With what we as citizens have been given, what we have, and the opportunities we cherish in this country we cannot simply blow off the rest of the world. These people are protesting in ideal conditions – they have green grass to stand on and no mustard gas or helicopters mowing them down – in fact they wouldn't even have a fear of reprisal for what they are saying. But according to them, maybe people in Iraq and the rest of the world shouldn’t have the same. It is only “their” problem.

The huge problem with proverty?

2004-09-23T09:55:00.000-04:00

This is from a Heritage Foundation study:

For most Americans, the word "poverty" suggests destitution: an inability to provide a family with nutritious food, clothing and reasonable shelter. But only a small number of the million persons classified as "poor" by the Census Bureau fit that description. Real material hardship certainly does occur, but it's limited in scope and severity. Most of America's "poor" live in material conditions that would be judged as comfortable or well-off just a few generations ago.
The following are facts about persons defined as "poor" by the Census Bureau, taken from various government reports:
— Forty-six percent of all poor households own their own homes. The average home owned by persons classified as poor by the Census Bureau is a three-bedroom house with one-and-a-half baths, a garage, and porch or patio.
— Seventy-six percent of poor households have air conditioning. By contrast, 30 years ago, only 36 percent of the entire U.S. population enjoyed air conditioning.
— Only 6 percent of poor households are overcrowded. More than two-thirds have more than two rooms per person.
— The average poor American has more living space than the average individual living in Paris, London, Vienna, Athens and other European cities. (These comparisons are to the average citizens in foreign countries, not to those classified as poor.)
— Nearly three-quarters of poor households own a car; 30 percent own two or more cars.
— Ninety-seven percent of poor households have a color television. Over half own two or more color televisions.
— Seventy-eight percent have a VCR or DVD player; 62 percent have cable or satellite TV reception.
— Seventy-three percent own a microwave oven, more than half have a stereo, and a third have an automatic dishwasher.
Overall, the typical American defined as poor by the government has a car, air conditioning, a refrigerator, a stove, a clothes washer and dryer, and a microwave. He has two color televisions, cable or satellite TV reception, a VCR or DVD player, and a stereo. He is able to obtain medical care. His home is in good repair and is not overcrowded. By his own report, his family isn't hungry, and he had sufficient funds in the past year to meet his family's essential needs. While this individual's life is not opulent, it is equally far from the popular images of dire poverty conveyed by the press, activists and politicians.
Even better news is that remaining poverty can readily be reduced, especially among children. Child poverty in the U.S. is caused largely by low levels of parental work and by the absence of fathers from the home. While work and two-parent families are the surest ladders out of poverty, the welfare system continues to reward idleness while failing to provide support to keep families in tact.

Judicial Review

2004-09-07T13:30:00.000-04:00

During his video presentation, Ted Olson quoted Justice Scalia stating the problem with judicial review is not always the ability of the Supreme Court justices to engage in judicial activism. But rather when lower judges make these type of decisions. These lower judges may not have been #1 at Stanford or a graduate of Yale. Recently, a California judge ignored a recent bipartisian bill (which passed in great numbers through both houses). In the process she also ignored many medical experts. She assumed she was smarter than all of them by exercising her own will. The problem isn't judicial review in essence, but judicial activism. As The Federalist Papers states: "The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body."