Between 2009 and 2020, Josh published more than 10,000 blog posts. Here, you can access his blog archives.


Based on Arguments, SCOTUS Likely to Punt on Salazar Case (Memorial Cross in National Park)

October 7th, 2009

Over at SCOTUSBlog, Lye Denniston reports: Analysis: A case of disappearing issues | SCOTUSblog.

The case of the Christian cross standing alone in the midst of a huge federal land preserve in a California desert put before the Court the latest in a continuing series of controversies over religion commemoration in public places.  Lower federal courts had found the cross’s presence there unconstitutional, and barred enforcement of an attempt by Congress in 2004 to shift ownership of the site into private hands in a bid to save the cross.  The federal government took the case to the Supreme Court to protest those rulings.

Despite strenuous efforts by Justice Antonin Scalia to keep alive the core question of whether the cross display was a violation of the Constitution’s Establishment Clause, the dominant sentiment on the bench seemed to be that that was no longer open to review.  And despite efforts by U.S. Solicitor General Elena Kagan to get the Court to focus on whether a former park service officer had any right to sue to test the display, that, too, seemed to be beyond the Court’s reach.  Kagan, in fact, had to endure lectures by several of the Justices that the government should have tested that question earlier in the case, so had now missed its chance.

Justice Scalia spent considerable effort in trying to keep the argument on the constitutionality of the cross’s display.  He said the government had no obligation, just because it put up a monument to one faith, to have other monuments on the same site to other faiths.  In fact, he said, the Mojave cross was a commemoration of the service of soldiers of all faiths, including Jews and Muslims.  Scalia said it was “outrageous” to suggest otherwise.

In all likelihood the Court will not rule on the broader 1st Amendment issues. This is typical for the Roberts Court, which has taken somewhat of a judicial minimalist approach. Rather than rocking the boat by ruling on the Establishment Clause issue, the Court is likely to resolve it on narrower grounds.

Clip: Justice Douglas on 1956 Game Show, What's My Line

October 7th, 2009

Pretty funny clip of Justice William O. Douglas on the 1956 Game Show What’s My Line. No questions on emanations or penumbras though.

I have a slight tiff with the show, as they called him a Justice of the Supreme Court, and not an Associate Justice of the Supreme Court, but I’ll let it slide.


Can you imagine Justice Scalia on this show? Do you oppose the “homosexual agenda“? Yes. Do you find Justice Stevens’s opinion in Heller grotesque? Yes. Do you equate the Lemon Test to a “ghoul in a late-night horror movie? Yes. Does the wolf in Morrison come as a wolf? Yes!

H/T A.L.

Photo Gallery: My Ode to Article III, and Pictures of Me With Other People I Admire

October 5th, 2009

Here is a facebook gallery I assembled of pictures of me with some of the cooler people I’ve met. The gallery includes pictures of me with Judges, Professors, Politicians, and other people I admire. I won’t say that the pictures are arranged in any particular order, but they’re also not totally random (e.g., Thomas before Scalia, Easterbrook before Posner). Later, I’ll post a gallery of all of my autographed Constitutions.

OT09 Term Begins, SCOTUS Plays Musical Chairs. New Bench Seating Arrangement.

October 5th, 2009

Today is the day! October 5, the beginning of the Supreme Court’s October 2009 Term.

In light of Justice Souter’s departure, and Justice Sotomayor’s arrival,I realized that the Nine will play a bit of musical chairs on the bench. As you may know, the Justices are seated by order of seniority, with the Chief in the middle. The most senior associate justice sits to his left, next senior associate justice sits to his right, and it alternates down the bench. With the new configuration, Justice Sotomayor will take Justice Alito’s seat. Alito J., no longer the baby of the court, gets to move on up to the left side. I had tickets to arguments today, but sadly, duty of my court calls. I’ll listen to the recorded arguments later. I’m curious to see how Sotomayor, J., gets settled in.

From left to right.

Alito Ginsburg Kennedy Stevens Roberts Scalia Thomas Breyer Sotomayor
Seat 1 Seat 2 Seat 3 Seat 4 Seat 5 Seat 6 Seat 7 Seat 8 Seat 9

It’s pretty cool that Nino and Thomas will be sitting next to each other. Maybe Nino can break Thomas out of his quiet streak. And Thomas is still sitting next to Breyer, his former benchmate, so they can continue yukking it up while the oral advocates sweat it out.

And, as I previously blogged, here is a picture of the new Nine assembled:

The New Portrait of the New Nine

The New Portrait of the New Nine

They are all able to pose for their individual shots. Why can’t they pose, even for a second, for the group shot?

Is the Supreme Court Irrelevant?

October 3rd, 2009

At the conference, many of the panelists are talking about Professor Barry Friedman’s new, somewhat controversial argument, that the Supreme Court is irrelevant.

Since its inception, the Roberts Court has looked to avoid trouble. In the 2006 term, the Court’s center actually stopped short of overruling past decisions in at least four big cases, despite heckling from Justices Antonin Scalia and Clarence Thomas on the far right. This approach has prompted some to label Roberts a judicial “minimalist.” In the voting rights case itself, the chief justice delivered a stern lecture to Congress about how the provisions of the law “raise serious constitutional questions”–but then he walked away from the brink using that most hoary of judicial cop-outs, the “avoidance canon”: “[I]t is a well-established principle governing the prudent exercise of this Court’s jurisdiction that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of a case.”

Of course, predicting the Court’s demise is chancy business–there’s always a potential big moment just around the corner. Still, don’t expect much in the way of blockbusters from the Roberts Court anytime soon. Stuck between political forces on the left and conservative disarray on the right, the Court will most likely continue to creep rightward with no bold agenda.

There has been a lot of talk about the shrinking docket of the Supreme Court, but Friedman seems to be going out on a limb to say that it is not only taking fewer cases, but taking less important cases. I would point to Heller, and the recent cert grant in McDonald v. Chicago as pretty important blockbuster cases. A lot of the scholars here seem antagonistic to Friedman’s views. So we’ll see how this idea pans out.