Thursday, May 26, 2005
The supreme court met tuesday, and meets again next tuesday.
Updating this post from last week, the Court has now decided 45 argued cases and has 29 remaining.
Significant cases this week included Clingman v Beaver, and the Beef marketing tax case. In Clingman, the court moved away from its Anderson v Celebrezze test.
But there was a concurrence that limited the damage, and the merits weren't that important anyway, it was more about process, and while it wasn't a win, it could have been worse.
The beef case, which taxes each cow $1 to pay for the propaganda that results in many Americans torturing her just to eat her mutilated corpse, was more disappointing, and I haven't actually read it yet. In short, it says the government can tax us to death to pay for lying to us. Court-watchers had hoped for more constraints on when the government can extort such payments. Sigh.
There are two different questions. Is it constitutional? Is it good policy?
The beef act is bad policy, and troublesome from a constitutional standpoint,
but I should read the opinions before saying they are wrong.
That, at least, gives me something to do today -I've been at a loss. Sleeplessness leads to not being able to plan a day, and, not having anything planned, I didn't do anything. Made one phone call.
Johanns v Livestock Marketing.
"America's Beef Producers" is a question on which the trial record is altogether silent. We have only the funding tagline itself, a trademarked term10 that, standing alone, is not sufficiently specific to convince a reasonable factfinder that any particular beef producer, or all beef producers, would be tarred with the content of each trademarked ad.11
Scalia for the majority. I don't like it. Quibble: can the government get trademarks?
Good discussion of compelled speech cases.
Good Thomas concurrence:
I continue to believe that "[a]ny regulation that compels the funding of advertising must be subjected to the most stringent First Amendment scrutiny." Woulda been sweet if he'd done a Lawrence-like statement saying just because it's constitutional doesn't mean it's not stupid.
Breyer says it's economic regulation so regulate the hell out of it.
Ginsburg agrees but gets in a zinger, quoting government publications which explain that eating dead cows is bad for your health.
Kennedy Souter and Stevens get it right in dissent - but I'm saying only that I agree with them, share their preferences. I'm not making the case that Scalia is objectively wrong or has argued using fallacies. It's a possible interpretation of the constitution. It supports the Chief's bias of always upholding the federal government. (He doesn't always vote that way, but I claim he always has the bias.)
It supports Scalia's view that a plaintiff should be able to point textually to a clause in the constitution that clearly makes her the winner - none of those emanations or penumbras. The "freedom of speech" protected by the constitution probably doesn't prevent the king from speaking, or even in laying taxes to support the king's newspapers, websites, and tv stations. Here the speech is unfair, but the constitution doesn't have a rule that the king always be fair. A substantive due process fairness argument probably wouldn't have gotten far, although, see Lockner, the regulation is arbitrary and capricious, but aren't they all? Close enough for government work?
I would start, I think, with Thomas's strict scrutiny, and see where that leads.
So what did we learn today kids? That the government can't tax mushrooms, but can tax moocows. It's the kind of narrow hairsplitting that keeps lawyers employed.
That when the courts tell the government to stop oppressing the people, the government can just hire more lawyers to find more loopholes, and come back with a new plan to oppress the people. Yippee.
That's exactly what happens in the campaign speech censorship movement (aka "reform".) The forces for censorship of the little guy can't and won't be stopped by recourse to the courts. The ability to make unconstitutional rules and practices overwhelms the court's ability to tell them to stop, even when the court is itself sure what the answers are.
At the time I had read a law review article arguing that the mushroom ads were unconstitutional. How must it feel to be that author, to see your research vindicated
with a stunning victory, only to now see that victory swallowed up by the unstoppable tide of government litigating away its own checks and balances.
Not sure, at this exact moment, what to do about all this.
I guess I feel like Cicero, except less eloquent, watching as his republic dissolves into empire and corruption.
Updating this post from last week, the Court has now decided 45 argued cases and has 29 remaining.
Significant cases this week included Clingman v Beaver, and the Beef marketing tax case. In Clingman, the court moved away from its Anderson v Celebrezze test.
But there was a concurrence that limited the damage, and the merits weren't that important anyway, it was more about process, and while it wasn't a win, it could have been worse.
The beef case, which taxes each cow $1 to pay for the propaganda that results in many Americans torturing her just to eat her mutilated corpse, was more disappointing, and I haven't actually read it yet. In short, it says the government can tax us to death to pay for lying to us. Court-watchers had hoped for more constraints on when the government can extort such payments. Sigh.
There are two different questions. Is it constitutional? Is it good policy?
The beef act is bad policy, and troublesome from a constitutional standpoint,
but I should read the opinions before saying they are wrong.
That, at least, gives me something to do today -I've been at a loss. Sleeplessness leads to not being able to plan a day, and, not having anything planned, I didn't do anything. Made one phone call.
Johanns v Livestock Marketing.
"America's Beef Producers" is a question on which the trial record is altogether silent. We have only the funding tagline itself, a trademarked term10 that, standing alone, is not sufficiently specific to convince a reasonable factfinder that any particular beef producer, or all beef producers, would be tarred with the content of each trademarked ad.11
Scalia for the majority. I don't like it. Quibble: can the government get trademarks?
Good discussion of compelled speech cases.
Good Thomas concurrence:
I continue to believe that "[a]ny regulation that compels the funding of advertising must be subjected to the most stringent First Amendment scrutiny." Woulda been sweet if he'd done a Lawrence-like statement saying just because it's constitutional doesn't mean it's not stupid.
Breyer says it's economic regulation so regulate the hell out of it.
Ginsburg agrees but gets in a zinger, quoting government publications which explain that eating dead cows is bad for your health.
Kennedy Souter and Stevens get it right in dissent - but I'm saying only that I agree with them, share their preferences. I'm not making the case that Scalia is objectively wrong or has argued using fallacies. It's a possible interpretation of the constitution. It supports the Chief's bias of always upholding the federal government. (He doesn't always vote that way, but I claim he always has the bias.)
It supports Scalia's view that a plaintiff should be able to point textually to a clause in the constitution that clearly makes her the winner - none of those emanations or penumbras. The "freedom of speech" protected by the constitution probably doesn't prevent the king from speaking, or even in laying taxes to support the king's newspapers, websites, and tv stations. Here the speech is unfair, but the constitution doesn't have a rule that the king always be fair. A substantive due process fairness argument probably wouldn't have gotten far, although, see Lockner, the regulation is arbitrary and capricious, but aren't they all? Close enough for government work?
I would start, I think, with Thomas's strict scrutiny, and see where that leads.
So what did we learn today kids? That the government can't tax mushrooms, but can tax moocows. It's the kind of narrow hairsplitting that keeps lawyers employed.
That when the courts tell the government to stop oppressing the people, the government can just hire more lawyers to find more loopholes, and come back with a new plan to oppress the people. Yippee.
That's exactly what happens in the campaign speech censorship movement (aka "reform".) The forces for censorship of the little guy can't and won't be stopped by recourse to the courts. The ability to make unconstitutional rules and practices overwhelms the court's ability to tell them to stop, even when the court is itself sure what the answers are.
At the time I had read a law review article arguing that the mushroom ads were unconstitutional. How must it feel to be that author, to see your research vindicated
with a stunning victory, only to now see that victory swallowed up by the unstoppable tide of government litigating away its own checks and balances.
Not sure, at this exact moment, what to do about all this.
I guess I feel like Cicero, except less eloquent, watching as his republic dissolves into empire and corruption.
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