The Deflation of Rights

Supreme Court Hears Oral Arguments On Arizona Immigration LawPrint up a bunch of money, and the value of money is almost sure to decline. Make up a host of new rights and the value of rights is likely to plummet as well. As our modern experience demonstrates.

Simplifying, we might imagine three stages in the devaluation of rights. In stage one (which, like the “state of nature,” probably never quite existed), a right would be categorical. If you have a right to freedom of speech, say, this would mean that you can say whatever you want (at least within the scope of the right’s coverage) and the government cannot sanction or restrict you. Period. Justice Black sometimes talked as if freedom of speech were or should be an absolute right. The average lay person may sometimes think this is what a right means.

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When the Justices Talk about the Constitution outside the Court

Professor Ross Davies has a cool new article in the Green Bag, titled “Extrajudicial Reticence: Nine Justices Take a Brief Break from Constitutional Commentary.” Davies draws attention to a curious episode in Supreme Court history, where Life Magazine asked each of the Justices to write a commentary on one of the Amendments in the Bill of Rights. Davies notes that for, perhaps the first and only time ever–briefly in 1991–the Justices decided not to weigh in on the Constitution outside the Court.

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Religious Exemptions to Anti-Discrimination Laws under RFRA

Now that the debate over Arizona’s SB 1062 bill is over, it is worthwhile to pause and think about some of the legal implications of carving out religious exemptions for generally applicable anti-discrimination law. Specifically, does the federal Religious Freedom Restoration Act (which was virtually identical to the provision proposed in Arizona) offer a defense for a private claim of discrimination.

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Toobin’s Disgrace

clarence-thomasJeffrey Toobin’s recent article in The New Yorker, “Clarence Thomas’s Disgraceful Silence,” is itself disgraceful. Toobin noted that, as of February 22, eight years have passed since Justice Thomas last asked a question during a Supreme Court oral argument. Toobin finds Thomas’s silence “bizarre” and “downright embarrassing, for himself and for the institution he represents.”

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Recess Appointments: A Final Quick Pre-Argument Note

NLRB v. Noel Canning is to be argued tomorrow (or today, depending on when you read this). The Court has ordered extended argument (90 minutes), and there’s an interesting twist: fifteen minutes on the respondents’ side have been given to Senator Mitch McConnell and 44 other Senators. Appearing as amici, the Senators insist that the Senate was in fact in session when the disputed recess appointments were made. If that’s right, the two questions that have engendered so much heated dispute—the question of intra- versus inter-session “recess(es),” and the question of whether the executive power to make such appointments covers…

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The Government is Us. Let’s Unionize!

Happy New Year, and all cheer the arrival of the one and only John McGinnis on this excellent site! His contributions will make it excellenter still. Rummaging around on the Supremes’ docket and among briefs and petitions, I’ve come across Harris v. Quinn. The question is whether it’s okay for a state (Illinois) to authorize unionization, complete with mandatory union fees, for home health care workers who provide in-home care to individual patients under Medicaid-financed programs. Abood v. Detroit Board of Ed. (1977) held that public employers have a “compelling interest” in labor peace and in preventing free-riding by employees. (However,…

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Climate Change, the Sequel: How the Supreme Court Created Free-Form Government

Having been a tad remiss in my blogging obligations, I’ll try to compensate by letting patient readers in on an elaborate political joke, involving the planet and the U.S. economy. Getting the joke demands familiarity with messy statutes and a keen appreciation of institutional incentives. That’s why we Washingtonians are rich and you people are a laugh a minute.

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Bond v. U.S.: Government Tells Court to Bug Out

Yesterday, the Supreme Court heard oral argument in Bond v. United States. Mrs. Bond had smeared a toxic chemical on a romantic rival’s doorknob and mailbox, resulting in a thumb burn. She was federally prosecuted for violating a federal statute that implements the international Chemical Weapons Convention. The statute is broad indeed; as Justice Alito noted in an earlier round of litigation, it makes poisoning a goldfish with vinegar a federal crime. Earlier coverage is here.

After the argument, it’s possible that the case may decide some very large constitutional questions, thanks in no small part to the government’s breathtakingly aggressive stance. The key question is whether the feds can mow constitutional federalism barriers by treaty and implementing legislation. Solicitor General Verrilli’s answer was an emphatic “yes.” Not a good idea: excerpts from the transcript (which is here) convey the justices’ incredulity.

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The Justices’ Ho-Hum Day

Yesterday, the Justices (eight of them—Justice Kagan recused) heard arguments in Schuette v. Coalition to Defend Affirmative Action. (Briefs and coverage here.) In the wake of Gratz v. University of Michigan, Michigan voters (by a 58-42 margin) enacted Prop 2, a constitutional amendment that prohibits preferences based on race. The question is whether that amendment violates the Fourteenth Amendment. The theory is a “political process” argument: in competing for university admissions, applicants can still play their cello skills or what have you as a trump—but not their race: those folks must now agitate for another constitutional amendment to re-institute (barely) permissible preferences, and that’s a unique disadvantage. Crackpot?

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They’re Back in Business

While much of the government is closing down, the U.S. Supreme Court (Motto: “The Functional Branch of Government”) has convened for its October 2013 Term. This past Monday, there were eight new cert grants (Lyle Denniston has them here). Total snoozers unless you happen to be an IP lawyer (especially one with a keen interest in the latest spats between Judge Posner and the Federal Circuit). That’s par for the course: upon re-convening, the justices motor through the stuff that’s accumulated over the summer, grant a few easy ones, and deny a ton (that’ll be this coming Monday’s mile-long Order List).…

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