Interesting article on US v. Miller
Right here. Via Dave Kopel at the Volokh Conspiracy.
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WaPo on Justice Kennedy as swing vote
Article here. It's interesting to note that with 40 decisions handed down this Term, Justice Kennedy has been in the majority 38 times, and he's the only Justice to be in the majority in all 5-4s to date.
Hat tip to Instapundit.
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Scalito?
The joke during Alito's confirmation hearings was that he was "Scalito," a Scalia clone. Yet it's been noted that he frequently splits with his supposed alter-ego.
Today came yet another split, in JAMES v. UNITED STATES (No. 05-9264). At issue was a 15 year sentence under 18 USC 924(e), which imposes mandatory terms on felons in possess who have three priors for "a violent felony or a serious drug offense." The term violent felony is further defined to include burglary, and a catchall provision for any offenses for any crimes that involve a serious risk of violence. The question was whether attempted burglary under Florida law qualifies as a violent felony.
Alito's majority opinion says yes. The common aspects of the listed crimes are not their completion but their potential for violence. Attempted burglary poses nearly the same risk of a violent confrontation as does completed burglary.
Scalia dissents, joined by Stevens and Ginsburg (again illustrating that simple "conservative wing/liberal wing" breakdowns of the Court often don't work). The catch-all clause is ambiguous. How much similarity is required? Burglary itself is the least risky of the crimes enumerated (others include arson and extortion). Attempted burglary presumably is less risky than the least risky crime listed.
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Supreme Court Gun Cases online
A summary of "Supreme Court Gun Cases," by Steve Halbrook, Dave Kopel and Alan Korwin, is online.
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Justice Scalia on firearms
This from CNN: Justice Scalia addresses the National Turkey Federation with recollections of his carrying a rifle to matches in New York City.
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Ideology and Second Amendment positions
Prof. Jeff Segal (pol. sci, SUNY) has an interesting study of study of Supreme Court justices and nominees and their apparent ideology. (pdf file--click on "Perceived qualifications...")
For a handful of Justices and former Justices, we know something of their Second Amendment views. Warren Burger and Parade magazine, Bork and his later comments, Rehnquist mentioning the Second Amendment and the "right of the people," Blackmun's slighting of it in Lewis v. US, Douglas's dissent in an informant case saying he'd rather lose the 2nd amendment than the 4th, etc. What's interesting is that the views don't follow much of an ideological pattern. In this assessment, 1.00 equals very liberal (Thurgood Marshall, Wm Brennan) and 00 equals very conservative (Scalia, and I know this lumps together statist and libertarian conservatives -- I suspect the rating system employs a lot of anti-criminal defendant = conservative). Anyway, it's interesting that the known pro and known anti count is exactly the same -- mostly conservative, with one liberal there too:
Pro Second Amendment:
Rehnquist: .045
Black: .875
Thomas: .150
Scalia: .000 [The pros tend to be conservative, but with one liberal in the mix]
Probably pro Second Amendment:
Roberts: .120
Alito: .100 [Probables tend to be conservative]
Anti second amendment:
Douglas: .730
Blackmun: .115
Burger: .115
Bork: .095 [Antis, just like pros, tend to be conservative, with one liberal]
In case you're wondering about the middle -- aren't there any moderates on the Supremes? --for the majority of justices (this includes all nominated since 1937) there's no feel for their second amendment views, and hence they aren't included. The ones about whom we know anything tend to be very conservative or very liberal. Further, the more recent justices seem more likely to have taken a stand (second amendment wasn't a very hot issue before the late 1960s, and most of the positions date from 1980 on), and the more recent courts have been more conservative, hence conservatives tend to predominate in my count.
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Seegers v. Gonzales cert decision coming
The Surpeme Court's docket indicates that the Seegers petition for cert. is up for vote at the conference this Friday.
The issue is whether plaintiffs have standing to challenge the DC handgun ban, absent their prosecution under it. A pdf file of the petition for cert. is available on Steve Halbrook's webpage.
(Standing to sue, absent prosecution, is one of the more remarkably messed up areas of the law. You'd think it'd be enough to prove that you want to do something, a criminal law forbids it, and you can argue the law is unconstitutional. But it never works out that simply, and there are cases (a) saying you never, or rarely, have standing absent at least a one-on-one clear threat to prosecute if you do it, and (b) cases allowing suit where there is no such threat, and indeed where the law in question has never been enforced).
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Plug for Cornell Univ. website
Just figured to mention (before using it in the next posting) that Cornell Univ. has a great great website on current and some historic Supreme Court cases.
If you go here you can sign up for email bulletins, which will email you the syllabi of all rulings, the day they are issued, and also useful previews of cases in which cert. has been granted or oral argument set.
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Is any Supreme Court nomination invalid?
James Lindgren, on the Volokh Conspiracy, reports an interesting point.
By law, there are nine Justices on the Supreme Court, and the President can nominate, and the Senate confirm, a successor when a Justice resigns or dies.
But O'Connor's resignation said it would become effective when her successor was confirmed. So her resignation won't take effect until the successor is confirmed. But until it takes effect, there is no opening, and no one can be nominated or confirmed. Catch-22, the best catch there is!
In practice, of course, the problem will be ignored (as it apparently was the last time it arose, when CJ Burger resigned the day his successor, CJ Rehnquist, was sworn in).