Why I want to become a Supreme Court Justice

I've decided to climb back out of my virtual hole to share with you two reasons why Supreme Court Justice should be above Fireman, President, and Jedi Knight on every kid's list of dream jobs (mostly this is actually just a way of showing off that I've read the New York Times every day this week, but I think you'll enjoy it nonetheless).

First, Barack Obama isn't the only prominent Bob Dylan fan. Apparently Chief Justice John Roberts is too, so much so that he cited a Dylan lyric in an opinion last week. While he gets points for being more original than the 19 judges who have cited Dylan's "You don’t need a weatherman to know which way the wind blows" from "Subterranean Homesick Blues," Roberts commits the ultimate sin of getting the lyrics of "Like a Rolling Stone" wrong. O.M.G. I mean, if you're going to put a Dylan lyric in an opinion, you might as well go the full length and include the double negative: "When you ain't got nothing, you got nothing to lose."

Why this is awesome: That line is now a freaking law which will have to be considered as precedent for every court decision in this country from now on. HOW AMAZING IS THAT. Ok, fine, he actually wrote it in a dissenting opinion. But if I were a Supreme Court Justice writing a majority opinion, I could make anything I want into a law, and it would require a Constitutional amendment to overturn it! It brings a whole new meaning to "Activist Judges"!
Can mentally challenged people vote? Yes: "I'm not crazy, I'm just a little unwell."
Is Communism a national security threat? No: "If you go carrying pictures of Chairman Mao, you ain't going to make it with anyone anyhow."
And if I ever heard a child rape case, my entire opinion could be the lyrics to "Don't Stand So Close To Me".

Speaking of child rape, that brings me to my Second Awesome Thing. Apparently writing a Supreme Court opinion doesn't require you to actually know things, as long as no one else remembers to tell them to you.

It turns out that when Justice Kennedy based last week's decision that child rapists cannot be put to death partly on the fact that the Federal government doesn't allow it, he was...well...wrong. In 2006 the Uniform Code of Military Justice was amended by Congress to allow the death penalty for members of the Armed Forces who rape a child. Oh, and the last execution by the military came in 1961...for the rape of an 11-year-old girl.

But Kennedy gets no blame for this mistake, because none of the 10 briefs filed in the case mentioned this law. Here are some of the people who missed this:

• Sen. John Warner and Rep. Duncan Hunter, the sponsors of the bill that contained that provision.

• George W. Bush, who signed the bill into law.
• The staffer(s) who presumably explained to the President what all the big words in the bill meant.
• The Solicitor General, whose job it is to write briefs defending Federal laws.
• The lawyers for both sides of the case.
• All nine Justices.
• The military.

Whoops.

Why this is awesome: First, I could be incorrect and it wouldn't matter; other people would get blamed! And second, Kennedy's decision effectively nullified that portion of the Uniform Code, meaning I could strike down laws I don't even know exist! HOW CRAZY IS THAT.

And finally a reward from myself and the Capitol Steps for reading this far:

Gun control in the Supreme Court

Today the Supreme Court granted certiorari to District of Columbia v. Heller, a constitutional challenge to a District of Columbia law banning handguns. It's worth keeping an eye on this one. Despite the importance of the Second Amendment, and its rather bizarre grammar (I don't think that's entirely a sentence), the Supreme Court has never handed down a conclusive interpretation. The last time the court addressed gun rights at all was in a 1939 case called U.S. v. Miller, which ruled that an Arkansas law banning sawed-off shotguns was legitimate on the basis that:

In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.

A good precedent, as far as I'm concerned, but we'll have to see what the Roberts court does with it.

Not the Best Way to Start the Week

Good morning! (Well, it's morning in my mind.) Happy Monday, everyone. First I would like to point out that that lake in Chile is still missing, so if you see a trace of Carmen Sandiego anywhere for heaven's sake call ACME.

But the big news today is from the Supreme Court, which this morning has crapped out a whole bunch of rulings. It's a mixed bag; I approve of the decision to permit interest-group TV ads right up to election day, since the old rule banning them after a certain deadline was terribly arbitrary, and there's really no excuse for limiting political expression like that anyway. Also, as disappointing as it is to hear that the awesome "Bong Hits 4 Jesus" kid lost, I tend to sympathize with the idea that advocating illegal activity within a public educational institution does not count as protected speech. (Think of it this way: if the banner had said "Kill People 4 Jesus," you wouldn't want that permitted in a high school, would you? From a legal perspective the standard is the same.)

What gets me, though, is the 5-4 decision in Hein v. Freedom From Religion, which came to the truly sick conclusion that taxpayers do not have standing to challenge federal government programs. Excuse me? The people who pay for something are not entitled to complain about it? Justice Alito (and I still shudder a little every time I hear those two words together) apparently employed this logic:

"If every federal taxpayer could sue to challenge any government expenditure, the federal courts would cease to function as courts of law and would be cast in the role of general complaint bureaus."

This might be acceptable thinking from a fast-food restaurant that decides not to accept credit cards so its line moves faster, but it's hardly a way to run your national justice system. It's bad enough to say that people cannot question the constitutionality of programs they pay for, but to make that decision for reasons of efficiency is just repulsive. What's next, do we start cancelling elections because they're too much of a hassle?

And I'll bet you can guess exactly who agreed with this statement: Alito, Kennedy, Roberts, Thomas, and Scalia. George Bush's posse. Surprise!

Reason #270 to elect a Democratic president in 2008: no more of these turkeys on the Supreme Court.

UPDATE (1:30 PM): On "Bong Hits 4 Jesus," Justice Stevens' dissent raises some good points I hadn't really thought about. First, he argues that drug advocacy is not serious enough to merit censorship:

It is also perfectly clear that "promoting illegal drug use" comes nowhere close to proscribable "incitement to imminent lawless action." Enouraging drug use might well increase the likelihood that a listener will try an illegal drug, but that hardly justifies censorship... No one seriously maintains that drug advocacy (much less Frederick’s ridiculous sign) comes within the vanishingly small category of speech that can be prohibited because of its feared consequences. Such advocacy, to borrow from Justice Holmes, "ha[s] no chance of starting a present conflagration."

And second, he argues that even if it did, this poster hardly qualifies as advocating illegal drug use:

To the extent the Court independently finds that "BONG HiTS 4 JESUS" objectively amounts to the advocacy of illegal drug use—in other words, that it can most reasonably be interpreted as such—that conclusion practically refutes itself. This is a nonsense message, not advocacy... [Complainant] Frederick’s credible and uncontradicted explanation for the message—he just wanted to get on television—is also relevant because a speaker who does not intend to persuade his audience can hardly be said to be advocating anything.

I'm not really convinced by the second point -- the student's intent has little to do with the eventual effect of his message, and it's perfectly possible to merge nonsensical humor with advocacy. (For proof of that see this, or any, blog.) But when Stevens suggests that drug advocacy does not present a serious threat of disruption, he may be on to something... it's tough to disentangle that question from the issue of whether marijuana use is really harmful at all, though, and that point it stops being a free speech question and the court would get hopelessly lost. Wouldn't a better standard, for First Amendment purposes, be simply to proscribe speech in public schools that promotes illegal action, whatever that action may be? I'm open to hearing from someone who knows about law on this.