Archives: 02/2016

Antonin Scalia, Revolutionary

Justice Scalia, who was marking his 30th year on the Supreme Court, is indisputably the most influential jurist of my lifetime (and probably longer than that). He reoriented the study and practice of constitutional law towards the meaning of the actual Constitution and the interpretation of statutes toward their actual text. Originalism and textualism simply wouldn’t exist in a way worthy of their names without him.

But that’s not the only way in which he revolutionized the law. His writing style—clear, direct, and with obvious personality—blew fresh air through often staid and technocratic jurisprudence. He knew that he was writing not just for legal experts, but for the ages. There’s a reason that his opinions get reprinted in law school casebooks even when he’s not in the majority.

In coming days, we’ll see plenty of analyses of Scalia’s “greatest hits,” and there were plenty, whether you agree with him or not. I especially appreciate his opinion for the Court in District of Columbia v. Heller (2008), which confirmed that the Second Amendment protects an individual right. (And note that the dissenting justices pushed back on originalist grounds.) I especially regret his concurring opinion in Gonzales v. Raich (2005), where the Supreme Court authorized the federal government’s regulation of (marijuana) plants that people grow in their backyard for their own consumption. But agree with him or not in any particular case, you cannot deny his impact.

Justice Antonin Scalia, R.I.P.

The news has just broken that Supreme Court Justice Antonin Scalia, 79, was found dead today in his room at a luxury resort in west Texas where he was attending a private event. He apparently died of natural causes.  

Scalia has been a major force in American law since President Reagan nominated him to the Supreme Court in 1986. His opinions, including his trenchant dissents, have shaped every area of our law. A leader of the conservative wing of the Court, the force of his intellect, both on and off the bench, was immense.

The immediate question on many minds, of course, is whether his seat will be filled before President Obama leaves office. Given the growing differences between the president and the Republican majority in the Senate, especially over the reach of executive power under the Constitution, it is likely that the seat will remain vacant until the next president is in office.

May Justice Scalia rest in peace.

 

Spin Cycle: White House Spins SCOTUS Stay on Climate Plan

The Spin Cycle is a reoccurring feature based upon just how much the latest weather or climate story, policy pronouncement, or simply poo-bah blather spins the truth. Statements are given a rating between 1-5 spin cycles, with less cycles meaning less spin. For a more in-depth description, visit the inaugural edition.

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As one of us has already noted, on Monday evening the Supreme Court voted 5-4 to put President Obama’s Clean Power Plan on ice—where it will remain until the justices get a chance to rule on the regulatory package themselves or until a new President sidelines it. The White House, whistling past a graveyard of unrecyclable solar panels (thanks to all the arsenic in them), blew up the vorticity of its spin cycle into relativistic speeds, calling it a “bump in the road” and a “temporary procedural issue.”

Over in the UK, Lisa Nandy, the shadow energy and climate minister knows why: “There is such strong support within the US for Obama’s efforts on climate change that I think this ruling will prove to be only a very temporary issue.”

Au contraire! According to a Yougov poll late last month, a grand total of 9 per cent of Americans think global warming is the most important issue confronting us. In only one country was there less support:  Saudi Arabia.

All of this ignores some facts on the ground. This is the biggest intervention by the Supremes in ongoing litigation since they stopped the partial Florida recount in December 2000 in the case that became Bush v. Gore. They only do stuff like this when there’s a lot at stake, irreparable harm will be done by not intervening, and at least five justices believe it more likely than not that the challenge will succeed.

Can a Syrian Ceasefire Hold?

Yesterday’s agreement for a cessation of hostilities in the Syrian conflict – including provision for humanitarian aid deliveries – is welcome news from an increasingly bloody conflict. The deal has been greeted with justifiable skepticism from observers around the world, who note the many and varied problems inherent in the proposed agreement. This is not a formal ceasefire, and it faces long odds of successful implementation. But that doesn’t mean it isn’t worth supporting to the fullest extent possible. If it does succeed in reducing violence inside Syria, it just might act as the necessary first step to a more comprehensive ceasefire and transition agreement.

One could hardly have imagined a more ill-omened location for the agreement, which was announced yesterday on the sidelines of the Munich Security Conference. The agreement itself calls for a cessation of hostilities inside Syria – though it does not apply to either of Syria’s main extremist groups, ISIS or Jabhat al-Nusra – and for the rapid provision of access for the delivery of humanitarian supplies to Syria’s besieged cities. It is not an immediate deal: parties have one week before it takes effect. Yet if the deal sticks, it will help to stem the flow of Syrian refugees and provide desperately needed humanitarian assistance.

You Ought to Have a Look: SCOTUS Stays Clean Power Plan, Paris Accord Imperiled, UN 1.5°C Nonsense.

You Ought to Have a Look is a feature from the Center for the Study of Science posted by Patrick J. Michaels and Paul C. (“Chip”) Knappenberger.  While this section will feature all of the areas of interest that we are emphasizing, the prominence of the climate issue is driving a tremendous amount of web traffic.  Here we post a few of the best in recent days, along with our color commentary. 

The big climate news of the week is, of course, that the U.S. Supreme Court put a stay on the EPA’s Clean Power Plan until the Plan’s detractors have their day in court.

Cato’s Ilya Shapiro summarized the situation succinctly:

The Supreme Court’s stay of the Clean Power Plan is a welcome development. The regulations constitute an unprecedented assertion of agency authority – particularly the dubious invocation of Section 111 of the Clean Air Act to justify regulating power-plant emissions – so the Court had to step in to prevent irrevocable harm to the energy sector. As we saw last term in Michigan v. EPA, often it’s too late to fix administrative abuses judicially after the fact. Lawlessness must be nipped in the bud.

And this move may have foreshadowed the death knell of the Clean Power Plan altogether; the only question is whether the justices will have a chance to strike it down for good before the next president reverses it.

Lots has been written on it.  In addition to Ilya’s, below is a sampling of others offering good insights. There are many more, and we apologize to those whose comments should have made this list but were left off (through negligence or space).

A Libertarian Argument for Bernie Sanders?

Will Wilkinson notes that there is a libertarian argument for Bernie Sanders. I’m not sure I buy the precise point Wilkinson is making. Sanders says he wants to make the United States more like Finland, Sweden, and Denmark. And those countries do indeed rank higher than the United States in the Cato Institute’s Human Freedom Index, compiled by my colleagues Ian Vásquez and Tanja Porčnik. But Sanders wants to emulate those countries in the ways they are less free than the United States (i.e., expanding government transfers), not in the ways they are more free (taxes and regulation). I think this powerful Sanders ad featuring Eric Garner’s daughter Erica is a much better libertarian argument for Sanders.

Should the U.S. Prosecute El Chapo?

The United States wants Mexico to extradite Joaquin “El Chapo” Guzman, the notorious head of the Sinoloa drug cartel who was recently re-captured after his second escape from a Mexican prison.  Federal prosecutors want to try El Chapo in Brooklyn or in another city with outstanding indictments.

Does this prosecution make sense? Let’s take as given that El Chapo has broken U.S. drug laws and commissioned acts of violence on U.S. soil.  And let’s set aside whether governments should prosecute bad laws, like drug prohibition, so long as those laws remain on the books.

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