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Thomas goes nuts

After seeing the plurality overturn longstanding precedents in order to seize jurisdiction over this case, ante, at 2-4 (Scalia, J., dissenting), and after seeing them disregard the clear prudential counsel that they abstain in these circumstances from using equitable powers, ante, at 19-24, it is no surprise to see them go on to overrule one after another of the President's judgments pertaining to the conduct of an ongoing war. Those Justices who today disregard the commander-in-chief's wartime decisions, only 10 days ago deferred to the judgment of the Corps of Engineers with regard to a matter much more within the competence of lawyers, upholding that agency's wildly implausible conclusion that a storm drain is a tributary of the waters of the United States. See Rapanos v. United States, 547 U. S. ___(2006). It goes without saying that there is much more at stake here than storm drains. The plurality's willingness to second-guess the determination of the political branches that these conspirators must be brought to justice is both unprecedented and dangerous.

charon wrote:

Isn't he making a good point? 

Personally, I'd be inclined to overrule the Prez and the Corps.

I don't know about this case involving the Corps so I can't comment on it, but (assuming you know more than I do) is it really a valid comparison (apart from the fact that you disagree with the decision in the prior case)?

I just can't take Thomas seriously on these cases involving presidential war powers.

The pres and cabinet take an oath with that in it. Too bad they really don't think about that part much.

bratboy wrote:

charon wrote:

...But Thomas's point, that if the Court should as a rule defer to Corps' expertise on the Clean Water Act, it should also defer to the Executive's expertise on the laws of war, seems pretty reasonable.

Okay....I don't know if there's even a point in pursuing this as I don't know what I'm talking about, but does the former case involve the separation of powers?  IIRC, the decision today is not anything that Congress could not undo.  Determining the limits of power seems different than judging or "second guessing" one's expertise, in my opinion.

Rapanos is an administrative law case (have you taken admin law yet? I found it quite worthwhile), so yes, in the sense that all admin law cases are about SOP, because  they all involve the judiciary's passing judgment on interpretations of law promulgated by another branch.  Just like Hamdan.

And Rapanos could also be undone by Congress, by amending the Clean Water Act.

bratboy wrote:

Do you know much about this jurisdictional argument in Hamdan?  Is it that significant, or would this all have come up in a different context anyway?

If you're referring to the Detainee Treatment Act, I know (I think) that the majority argued it didn't remove jurisdiction from pending appeals.  Beyond that I know nothing.

kudos to Emily Bazelon for bringing this footnote to my attention

J Stevens wrote:

While statements attributed to the final bill's two other sponsors, Senators Graham and Kyl, arguably contradict Senator Levin's contention that the final version of the Act preserved jurisdiction over pending habeas cases, see 151 Cong. Rec. S14263-S14264 (Dec. 21, 2005), those statements appear to have been inserted into the Congressional Record after the Senate debate. See Reply Brief for Petitioner 5, n. 6; see also 151 Cong. Rec. S14260 (statement of Sen. Kyl) ("I would like to say a few words about the now-completed National Defense Authorization Act for fiscal year 2006" (emphasis added)). All statements made during the debate itself support Senator Levin's understanding that the final text of the DTA would not render subsection (e)(1) applicable to pending cases. See, e.g., id., at S14245, S14252-S14253, S14274-S14275 (Dec. 21, 2005). The statements that Justice Scalia cites as evidence to the contrary construe subsection (e)(3) to strip this Court of jurisdiction, see post, at 12, n. 4 (dissenting opinion) (quoting 151 Cong. Rec. S12796 (Nov. 15, 2005) (statement of Sen. Specter))--a construction that the Government has expressly disavowed in this litigation, see n. 11, infra. The inapposite November 14, 2005, statement of Senator Graham, which Justice Scalia cites as evidence of that Senator's "assumption that pending cases are covered," post, at 12, and n. 3 (citing 151 Cong. Rec. S12756 (Nov. 14, 2005)), follows directly after the uncontradicted statement of his co-sponsor, Senator Levin, assuring members of the Senate that "the amendment will not strip the courts of jurisdiction over [pending] cases." Id., at S12755.

jerwin wrote:

kudos to Emily Bazelon for bringing this footnote to my attention

J Stevens wrote:

While statements attributed to the final bill's two other sponsors, Senators Graham and Kyl, arguably contradict Senator Levin's contention that the final version of the Act preserved jurisdiction over pending habeas cases, see 151 Cong. Rec. S14263-S14264 (Dec. 21, 2005), those statements appear to have been inserted into the Congressional Record after the Senate debate. See Reply Brief for Petitioner 5, n. 6; see also 151 Cong. Rec. S14260 (statement of Sen. Kyl) ("I would like to say a few words about the now-completed National Defense Authorization Act for fiscal year 2006" (emphasis added)). All statements made during the debate itself support Senator Levin's understanding that the final text of the DTA would not render subsection (e)(1) applicable to pending cases. See, e.g., id., at S14245, S14252-S14253, S14274-S14275 (Dec. 21, 2005). The statements that Justice Scalia cites as evidence to the contrary construe subsection (e)(3) to strip this Court of jurisdiction, see post, at 12, n. 4 (dissenting opinion) (quoting 151 Cong. Rec. S12796 (Nov. 15, 2005) (statement of Sen. Specter))--a construction that the Government has expressly disavowed in this litigation, see n. 11, infra. The inapposite November 14, 2005, statement of Senator Graham, which Justice Scalia cites as evidence of that Senator's "assumption that pending cases are covered," post, at 12, and n. 3 (citing 151 Cong. Rec. S12756 (Nov. 14, 2005)), follows directly after the uncontradicted statement of his co-sponsor, Senator Levin, assuring members of the Senate that "the amendment will not strip the courts of jurisdiction over [pending] cases." Id., at S12755.

Good on Bazelon for actually pointing this out months ago.

sturner wrote:

the question always is, are politicians competent to take an oath?

My observations both from here ( USA) and abroad as well as my personal experience interacting with politicians, mostly overseas, would lead me to conclude that generally they are politicians are incompetent to take an oath as most are much more likely to blatantly break one than honour it.     

Sadly this appears to be human nature.  As honourable ones intentions may be there will be a point where ones honour can be bought for the right price.

The question, in my opinion, is not so much whether that point can be found by interest groups but when it is found.   

Luckily there are still politicians out there whose breaking point is difficult to reach, but they seem to be in short supply.

cheers,
Svenster..

svenster wrote:

"Roberts Is at Court's Helm, but He Isn't Yet in Control" :
http://www.nytimes.com/2006/07/02/washi … cotus.html

This article puts a different spin on the same information.
http://www.msnbc.msn.com/id/13643461/site/newsweek/

jerwin wrote:

What the smurf?

It's not "the same information, plus spin". The nytimes gives a far more detailed analysis than does newsweek. However,to my great disappointment, neither article mentions singular value decomposition.

Dear What the smurf,
The "spin" would be one article says Roberts has no control, the other says he does, they both use the same basic info to make their case.
Sincerely,
Farmerkev

jerwin wrote:

But what purpose does the spin serve? Roberts will likely serve out the remainder of his life on the Supreme Court. Roberts leadership (or lack of same) is of interest to three groups of people: the other justices, political scientists who think factionalism is interesting, and lawyers. And in each case, straight up analysis is far more preferable to "spin".

For Christ sake, all I did was point out 2 guys viewing the same information and drawing different conclusions.

Since when did Steven's decide he could rule on the relevance Geneva Convention?  Does SCOTUS have International law jurisdiction?

perhaps the thread should be titled "evil liberals who selectively use law for political ends"