I figured it was time he got his own thread, divorced from the news of Sandra Day O'Connor's resignation and strange, baseless allegations concerning his penchant for cruising men's toilets.
It was announced a couple of days ago that his confirmation hearings will begin Tuesday, September 6, so both sides have about a month to maneuver themselves into position.
I recall from John Ashcroft's hearings in 2001 that just about every piece of information about his past that appeared on the internet days before he sat down in front of the Senate Judiciary Committee surfaced in one of the panel member's questions, and there's no reason to believe that Roberts's experience will be much different.
There are some real entertainers on the dais, especially on the Democrat side, particularly Kennedy and Schumer. On the Republican side, the most penetrating questioner is Arlen Specter, while Jeff Sessions, as usual, can be expected to provide Roberts with a comfortable fellating.
Some more history and commentary on Judge Roberts:
Finally, from today's New York Times, a handy interactive feature that provides links to Roberts's 49 opinions as a judge on the U.S. Court of Appeals for the D.C. Circuit, arranged by date or subject:
Thanks for the links, Scarlatti. I'd sure love to get a peek at that Webster paper he wrote as an undergrad. From the quotes, it looks like Roberts is a damn fine writer all around, not just of legal opinions.
Among the cases the presumptive Associate Justice John Roberts will be hearing when the Court opens its next term in October is Ayotte v. Planned Parenthood, which has to do with a New Hampshire parental consent law that was deemed unconstitutional by the federal court in that state and subsequently affirmed by the 1st Circuit.
The law forbade abortions to minors unless written notice of the procedure was provided in person by the physician at the parents' home. The abortion couldn't be performed until at least 48 hours after this notification. The law also provided for notification by return receipt certified mail, failing the personal visit by the doctor.
The only "health exception," which is required by Supreme Court precedent, was in the event of the imminent death of the patient. There was also a judicial exception, which would have required the patient to seek a court hearing in order to determine whether she was competent to continue with the procedure without parental consent.
The district court in New Hampshire held that the "fatality exception" was too restrictive, and failed to meet the Supreme Court's standard for health exceptions, enunciated in Planned Parenthood v. Casey and later in Stenberg v. Carhart. The court permanently enjoined the enforcement of the law prior to its effective date, and the 1st Circuit upheld both the lower court and the permanent injunction.
Oral argument in Ayotte v. Planned Parenthood is scheduled for Wednesday, November 30.
Needless to say, the presence of this case on the Court's docket will effectively preclude Judge Roberts from addressing many of the questions on abortion he'll undoubtedly be fielding.
Last edited by D. Scarlatti; 08-01-2005 at 01:15 PM.
The Casey joint opinion reiterated what the Court held in Roe; that "'subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.'" 505 U.S. at 879 (quoting Roe, 410 U.S. at 164-165) (emphasis added). Stenberg v. Carhart, 530 U.S. 914, 930 (2000).
Casey, incidentally, contains the following notorious language, the subject of frequent derision on the part of Federalist Society types like John G. Roberts:
These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life.
To date, no Federalist Society member has ever found such a right in the text of the Constitution.
Um... yeaaah... I don't recall seeing the self-defined concept of existence/mystery of human life clause of the 14th Amendment either. It reads like an article in O magazine, truth be told. Who wrote that opinion, Scarlatti?
Casey was the product of the joint authorship of Justices O'Connor, Kennedy, and Souter:
Quote:
JUDGES: O'CONNOR, KENNEDY, and SOUTER, JJ., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, V-A, V-C, and VI, in which BLACKMUN and STEVENS, JJ., joined, an opinion with respect to Part V-E, in which STEVENS, J., joined, and an opinion with respect to Parts IV, V-B, and V-D. STEVENS, J., filed an opinion concurring in part and dissenting in part, post, p. 911. BLACKMUN, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, post, p. 922. REHNQUIST, C. J., filed an opinion concurring in the judgment in part and dissenting in part, in which WHITE, SCALIA, and THOMAS, JJ., joined, post, p. 944. SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C. J., and WHITE and THOMAS, JJ., joined, post, p. 979.
Along with an affirmative action case called Bakke, Casey is the law student's worst nightmare.
Democrats bring up Roberts's religious faith at their peril, but E.J. Dionne makes some good points:
Few topics arouse more hypocrisy and inconsistency than the relationship between religion and politics. ...
"We have no religious tests for public office in this country," declared an indignant Sen. John Cornyn (R-Tex.). "And I think anyone would find that sort of inquiry, if it were actually made, offensive. And so I hope we don't go down that road."
But just four days earlier, Sen. Tom Coburn (R-Okla.) was unabashed in hoping that Roberts's religious convictions would influence his decisions on the court. Coburn told reporters he and Roberts had discussed the nominee's faith. "If you have somebody first of all who has that connection with their personal faith and their allegiance to the law, you don't get into the Roe v. Wade situation," Coburn said[.]
Another hot button case for Roberts to hear will be Gonzalez v. Oregon, formerly known as Oregon v. Ashcroft in the U.S. District Court for the District of Oregon and a subsequent appeal to the 9th Circuit, where former Attorney General John Ashcroft lost both times (ironically, it's fair to say) on federalism* grounds.
The case has to do with a continuing federal challenge to Oregon's Death with Dignity Act, and in particular the administration of controlled substances to assist suicide under the Act. As the district court put it:
On November 6, 2001, with no advance warning to Oregon representatives, Attorney General John Ashcroft ... fired the first shot in the battle between the state of Oregon and the federal government over which government has the ultimate authority to decide what constitutes the legitimate practice of medicine, at least when schedule II substances regulated under the Controlled Substances Act ... are involved. Ashcroft began the battle by issuing the so-called "Ashcroft directive," -- a few paragraphs published in the Federal Register on November 9, 2001, in which Ashcroft declares, in relevant part, that
. controlled substances may not be dispensed to assist suicide, thus reversing the position taken by his predecessor, Attorney General Janet Reno, in June 1998.
. assisting suicide is not a "legitimate medical purpose" and that prescribing, dispensing, or administering federally controlled substances to assist suicide violates the CSA.
. prescribing, dispensing, or administering federally controlled substances to assist suicide may "render [a physician's] registration* * *inconsistent with the public interest" and therefore subject to possible suspension or revocation under 21 U.S.C. § 824(a)(4). Oregon v. Ashcroft, 192 F. Supp. 2d 1077, 1079 (D. Or., 2002).
The district court ruled in favor of Oregon, holding that the intent of Congress in passing the Controlled Substances Act included neither the authority to determine what constituted legitimate medical practices within an individual state, nor a grant of authority to the federal Justice Department to make a similar determination.
(Incidentally, during the Clinton administration, Ashcroft was one of the Senators that urged Janet Reno to take action against the Oregon law.)
The 9th Circuit upheld the district court's determination:
Unless Congress' authorization is "unmistakably clear," the Attorney General may not exercise control over an area of law traditionally reserved for state authority, such as regulation of medical care. ... In divining congressional intent, it is a "cardinal principle" of statutory interpretation that "where an otherwise acceptable construction of a statute would raise serious constitutional problems, [federal courts shall] construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress."
The Ashcroft Directive is invalid because Congress has provided no indication -- much less an "unmistakably clear" indication -- that it intended to authorize the Attorney General to regulate the practice of physician assisted suicide. By attempting to regulate physician assisted suicide, the Ashcroft Directive invokes the outer limits of Congress' power by encroaching on state authority to regulate medical practice. [citations omitted] Because Congress has not clearly authorized such an intrusion, the Ashcroft Directive violates the clear statement rule. Oregon v. Ashcroft, 368 F.3d 1118, 1125 (9th Cir., 2004).
The federal government, under current Attorney General Alberto Gonzalez, has appealed and the Supreme Court will hear oral argument in Gonzalez v. Oregon on Wednesday, October 5.
* Federalism refers to the tension between powers granted to the federal government by the Constitution and those powers retained by the states.
Another case from the Supreme Court Fall '05 docket is Maryland v. Blake, which has to do with a defendant's rights against interrogation after he's been read the Miranda warning and asked for a lawyer. At that point the police aren't allowed to interrogate a suspect further, or make statements that they know might coerce the suspect into talking.
On October 26, 2002, at about 5 a.m., Blake was arrested at his home and taken into custody wearing nothing but boxer shorts and a wifebeater. He and another suspect were charged with, among other things, first degree murder for the death of a man that was shot in the head and his body run over with his own car. Blake was read his Miranda rights.
There were two police officers involved with Blake at this point. At around 6 a.m. the first officer, Johns, came to Blake's cell and served him a copy of the documents outlining the charges against him, including the potential penalties. The documents contained, in all capital letters, the word "DEATH," despite the fact that Blake was 17 years old and not eligible for the death penalty under Maryland law.
Immediately thereafter the second officer, Reese, appeared and asked of Blake, in what Johns characterized as a "loud and confrontational" manner, "I bet you want to talk now, huh!" Johns, surprised at Reese's outburst, replied, "No, he doesn't want to talk to us. He already asked for a lawyer. We cannot talk to him now."
In reflecting on all this, Blake decided soon thereafter to make additional, self-incriminating statements to the police. Blake subsequently filed a pre-trial motion to have this evidence suppressed, maintaining that Reese's statement, in conjunction with the erroneous notation of "DEATH," "constituted the functional equivalent of interrogation following petitioner's invocation of his Miranda rights, thereby violating petitioner's right against compelled self-incrimination."
The trial court granted Blake's motion, and suppressed the evidence. Maryland appealed, and had the trial court reversed. On further appeal, the Court of Appeals of Maryland reversed the intermediate appellate court and upheld the original ruling of the trial court. The state's argument, which the Supreme Court has accepted for review, is summarized in the latter opinion as follows:
... Officer Reese's remark to petitioner was not interrogation--that petitioner initiated contact with the police after he read the charging documents and then voluntarily waived his Miranda rights before making incriminating statements. The State contends that Officer Reese's remark was not the functional equivalent of interrogation--that it was nothing more than a comment on the seriousness of the charges and, in a sense, a rhetorical question. Even if Officer Reese's remark is viewed as interrogatory or as an invitation to talk, the State maintains that Detective Johns removed any alleged taint from the remark when he admonished Officer Reese immediately that they could not talk to petitioner because he had invoked his right to counsel. Blake v. State, 381 Md. 218, 230 (Md., 2004).
That court also makes much of the fact that the 17-year-old Blake was practically naked while being held in a cell in Maryland at the end of October, and clearly takes that into consideration in determining that Officer Reese's question constituted impermissible coercion.
Roberts Donated Help to Gay Rights Case
# In 1996, activists won a landmark anti-bias ruling with the aid of the high court nominee.
By Richard A. Serrano, Times Staff Writer
WASHINGTON — Supreme Court nominee John G. Roberts Jr. worked behind the scenes for gay rights activists, and his legal expertise helped them persuade the Supreme Court to issue a landmark 1996 ruling protecting people from discrimination because of their sexual orientation.
Then a lawyer specializing in appellate work, the conservative Roberts helped represent the gay rights activists as part of his law firm's pro bono work. He did not write the legal briefs or argue the case before the high court, but he was instrumental in reviewing filings and preparing oral arguments, according to several lawyers intimately involved in the case.
[...]
She said he gave her advice in two areas that were "absolutely crucial."
"He said you have to be able to count and know where your votes are coming from. And the other was that you absolutely have to be on top of why and where and how the state court had ruled in this case," Dubofsky said.
She said Roberts served on a moot court panel as she prepared for oral arguments, with Roberts taking the role of a Scalia-like justice to pepper her with tough questions.
When Dubofsky appeared before the justices, Scalia did indeed demand specific legal citations from the lower-court ruling. "I had it right there at my fingertips," she said.
"John Roberts … was just terrifically helpful in meeting with me and spending some time on the issue," she said. "He seemed to be very fair-minded and very astute."
Dubofsky said Roberts helped her form the argument that the initiative violated the "equal protections" clause of the Constitution.
The case was argued before the Supreme Court in October 1995, and the ruling was handed down the following May. Suzanne B. Goldberg, a staff lawyer for New York-based Lambda, a legal services group for gays and lesbians, called it the "single most important positive ruling in the history of the gay rights movement."
__________________ In the land of Mordor, where the shadows lie...
[R]eports of his involvement echoed on conservative talk shows Thursday, generating outrage and disbelief. "There's no question this is going to upset people on the right," Rush Limbaugh told his radio listeners. "There's no question the people on the right are going to say: 'Wait a minute. Wait a minute! The guy is doing pro bono work and helping gay activists?'" - NYT
[R]eports of his involvement echoed on conservative talk shows Thursday, generating outrage and disbelief. "There's no question this is going to upset people on the right," Rush Limbaugh told his radio listeners. "There's no question the people on the right are going to say: 'Wait a minute. Wait a minute! The guy is doing pro bono work and helping gay activists?'" - NYT
I saw a clip from that Rush segment on the news yesterday. The funny thing was that Limbaugh was making excuses for Roberts, blaming the "liberal media" for hyping this to try to turn people against Roberts and "divide the right".
Public employee freedom of speech v. Adverse employment action
Today's case is Garcetti v. Ceballos, which Associate Justice Roberts will hear early in the Court's fall term on October 10. Gil Garcetti was the District Attorney for Los Angeles County for eight years and Ceballos a deputy DA with supervisory responsibilities over several other DAs.
In the course of a murder investigation, Ceballos was made aware by one of the defense lawyers that a related search warrant affidavit may have contained information fabricated by one of the arresting officers. Ceballos determined that the affidavit contained gross factual misrepresentations.
Ceballos's superiors agreed, and, in a memo to them, Ceballos recommended that the case be dismissed. After requesting that Ceballos revise the memo to soften the direct accusations made against the arresting officer, Ceballos's boss declined to dismiss the case, preferring instead to rely on the court's disposition in a defense motion requesting dismissal on the above grounds.
In the meantime Ceballos informed the defense attorney that he believed the warrant was bogus, and the defense subpoenaed Ceballos to testify at the motion hearing. In fact Ceballos not only testified at the hearing, but he also turned over to the defense his internal memoranda on the subject, which he was required to do by law.
The court sustained many of the prosecution's objections to the defense attorney's questioning of Ceballos at the hearing and as a result, according to Ceballos, he was unable to testify as to several of the reasons why he believed the search warrant was impermissibly obtained.
Nonetheless, following the motion hearing, Ceballos's superiors took what Ceballos alleged were retaliatory and adverse employment actions against him in violation of his right to free speech. Although he lost in district court, the 9th Circuit reversed and held that Ceballos's rights trumped both the qualified and sovereign immunity defenses the DA's office had mounted.
Qualified immunity protects individual public officials' actions against suit unless those actions violate the plaintiff's clearly established constitutional rights. Sovereign immunity refers to the 11th Amendment, which protects state governments against legal action.
Freedom of speech of course is a clearly established constitutional right. But the right is not absolute generally, and public employers can further stifle speech when that speech impairs the promotion of workplace efficiency and causes workplace disruption. Even though Ceballos's speech was directed toward his coworkers, the 9th Circuit determined that since the speech concerned wrongdoing on the part of the law enforcement agencies, its value as a matter of public concern outweighed the county's claims of qualified immunity.
On the 11th Amendment question, the 9th Circuit held that its protections cannot be claimed by county agencies, despite the fact they are subdivisions of the state. Since a county District Attorney acts both in the dual capacities of agent of the county and agent of the state, and retaliatory adverse employment actions occur pursuant to the former, Garcetti was unable to claim the 11th Amendment as protection against Ceballos's allegations.
At findlaw.com, Edward Lazarus on John Roberts, the Anti-Bork:
Thanks to Bork's entrenched views and his unusually frank responses, the public got an extraordinary education about the divisions in our legal and political culture -- regarding not just the issue of privacy, but also those relating to race, states' rights, religion, free speech and others.
There is, sadly, little risk of such enlightenment this time around. Most likely, Roberts will be as bland and reasonable as possible, while the liberals push and probe, but end up with insufficient information to penetrate Roberts's attractive veneer. In short, it will be all about "not-Bork."
Further to the subject of sovereign immunity, here's an interesting case for Associate Justice Roberts out of Pennsylvania, which he'll hear on Monday, November 7. This is another example of law being, in many instances, little more than a wrangling over the meaning of the words in statutes, or in this case, an exception to a statute.
In 2001, Ms. Dolan tripped and fell over "letters, packages and periodicals" placed on her porch by the posties, suffering serious injury. Once her complaints through the postal service's administrative channels had been exhausted, she took her case to federal court. At one point Mr. Dolan joined the suit, alleging that his wife's injuries prevented the successful commission of sexual intercourse (otherwise known as "loss of consortium") but his claim was dismissed and is no longer the subject of this appeal.
Ms. Dolan sued under the Federal Tort Claims Act (FTCA), which "confers jurisdiction upon the district courts to hear claims 'for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.'"
There are, however, numerous exceptions to the FTCA. The exception in this case is for "any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter." Conceding that the circumstances here refer neither to loss nor miscarriage of postal matter, Ms. Dolan claims that "transmission" does not include negligent "delivery or placing" of postal matter, and that therefore the negligence she's alleging is not covered by the exception.
As one might intuitively imagine, the courts have thus far denied Ms. Dolan's argument, siding instead with the government's motion to dismiss due to the courts' lack of subject matter jurisdiction based on the language of the exception: "It is a fundamental principle of sovereign immunity that federal courts do not have jurisdiction over suits against the United States unless Congress, via a statute, expressly and unequivocally waives the United States' immunity to suit," and such waivers must be "unequivocally expressed."
The 3rd Circuit, in agreeing with the lower court, ruled that "transmission," contrary to Ms. Dolan's interpretation of the word, necessarily includes the final postal act of placing postal matter on a porch, that Ms. Dolan's accident was simply incidental to the "transmission," and that therefore the exception to the FTCA bars her suit: "Indeed, it is hard to imagine a more ordinary accepted operation incident to delivering millions of packages and letters each year than the ultimate act of delivery by USPS employees."
Although I'm not entirely sure why the Supreme Court accepted this case, I'll hazard a guess there is a conflict among circuits, since last year the 2nd Circuit construed the same exception to the FTCA more narrowly, where a plaintiff's claims were not barred when a Connecticut woman slipped and fell on a postal package placed on her porch (and, again, her husband was subsequently denied the opportunity to obtain sexual favors).
In that case, a postal employee placed an item on a "stoop," and failed to warn the occupant of its presence, "failing to warn" being a weighty component of tort claims. As the 2nd Circuit put it, "The issue that we must resolve is whether 'negligent transmission' refers only to negligence that results in loss of, or damage to, the postal material itself, or whether 'negligent transmission' also encompasses the negligent placement of postal material that causes injury to someone or something other than the mail."
After reviewing definitions, precedent, legislative history, judicial interpretations of similar exceptions elsewhere in the statutory scheme, and the broader purposes of the FTCA, the 2nd Circuit ruled that the exception did not bar claims based on a postal worker's negligence. However it's not clear what role negligence, if any, played in the circumstances surrounding the "instant case," as we say.
I hereby predict Justice Roberts will side with the federal government on this one. For a dyed-in-the-wool American political conservative like Roberts to rule otherwise in ideological opposition to conservative notions of "tort reform" is the equivalent of his ... er ... going postal.
Last edited by D. Scarlatti; 08-06-2005 at 02:20 PM.
Further to the subject of sovereign immunity, here's an interesting case for Associate Justice Roberts out of Pennsylvania, which he'll hear on Monday, November 7...
Come on, 'fess up. You wrote that whole thing just so you could say "going postal" at the end...
Thanks for the case summaries and explanations. Very informative.
You're welcome. I just hope they're reasonably accurate.
The next case I'm reading (and plan to summarize here) is Rumsfeld v. Forum for Academic & Institutional Rights, Inc. a complex freedom of speech, or "right to expressive association," case. Law schools throughout the country have long adhered to a policy of preventing potential employers that discriminate on various grounds from participating in their career placement activities.
Several years ago Congress passed the Solomon Amendment, which denies federal funding to institutions that restrict the ability of the military to recruit on the institution's premises. The conflict arises where the institution's policy includes sexual orientation as one of the aforementioned discriminatory grounds, since by federal law, "[t]he United States military excludes servicemembers based on evidence of homosexual conduct and/or orientation."
Since the Solomon Amendment was passed in 1994, the law schools had made several accommodations, while not granting the military the same access as other, non-discriminatory employers, which nonetheless satisfied Department of Defense officials. Since 9/11 however, some adjustments to the amendment were passed that required more aggressive recruiting methods that were resisted by the law schools.
In the meantime, here is some language from the dissent to the 3rd Circuit's opinion in favor of the law schools which you'll find right up your alley:
What is involved here in the first instance is not operation of legal principles but precepts of logic that determine what can be properly inferred from stated circumstances. An inference is a process in which one proposition (a factual conclusion) is arrived at and affirmed on the basis of one or more other propositions, which were accepted as the starting point of the process. Professor Stebbing observes that an inference "may be defined as a mental process in which a thinker passes from the apprehension of something given, the datum, to something, the conclusion, related in a certain way to the datum, and accepted only because the datum has been accepted." L.S. Stebbing, A Modern Introduction to Logic 211-212 (1948).
Inference is a process where the thinker passes from one proposition to another that is connected with the former in some way. But for the passage to be valid, it must be made according to the laws of logic that permit a reasonable movement from one proposition to another. Inference, then is "any passing from knowledge to new knowledge." Joseph Gerard Brennan, A Handbook of Logic 1 (1957). The passage cannot be mere speculation, intuition or guessing. The key to a logical inference is the reasonable probability that the conclusion flows from the evidentiary datum because of past experiences in human affairs. A moment is necessary to discuss the difference between inference and implication. These terms are obverse sides of the same coin. We infer a conclusion from the data; the data imply a conclusion. Professor Cooley explains:
when a series of statements is an instance of a valid form of inference, the conclusion will be said to follow from the premises, and the premises to imply the conclusion. If a set of premises implies a conclusion, then, whenever the premises are accepted as true, the conclusion must be accepted as true also . . . .
John C. Cooley, A Primer of Formal Logic 13 (1942). [. . .]
From these basic precepts of logic we cannot conclude that the mere presence of a uniformed military recruiter permits or compels the inference that a law school's anti-discrimination policy is violated. It bears repetition that the passage from datum to conclusion cannot be mere speculation, intuition, or guessing, or by "judicial idiosyncracies." The subjective idiosyncratic impressions of some law students, some professors, or some anti-war protesters are not the test. What we know as men and women we cannot forget as judges. And this we know from elementary canons of logical processes--the validity vel non of a logical inference is the reasonable probability that the conclusion flows from the evidentiary datum because of past experiences in human affairs. Forum for Academic & Institutional Rights v. Rumsfeld, 390 F.3d 219, 251 (3d Cir., 2004).
(The author of the dissent, Senior Judge Aldisert, is 85 years old, which may explain the vintage of the works of logic he cites. Still, pretty sharp for an old dude.)
Last edited by D. Scarlatti; 08-07-2005 at 02:18 PM.
Sorry, the claim is that the law schools can't conclude, as a matter of deductive certainty, that the military recruiter is enforcing discriminatory policies while on campus?
He claims that a lone recruiter's brief appearance on campus is the "sole evidentiary datum" from which one can draw the logical inference that the school's anti-discriminatory policy is being violated, and he finds such an inference invalid:
Before we address the application of First Amendment precepts, I am unwilling to accept that there is a permissible inference, let alone a compellable one, that a military presence on campus to recruit, in and of itself, conjures up an immediate impression of a discriminatory institution. Forum for Academic & Institutional Rights v. Rumsfeld, 390 F.3d 219, 251 (3d Cir., 2004) (Aldisert, J., dissenting).
Compellable? Whatever the inference is, I'm not sure anyone's trying to compel it to do anything.
He thinks that U.S. military personnel have always been seen - and especially since 9/11 - as heroes and freedom fighters, not discriminators. So the inference flies in the face of ordinary human experience, or something.
Nor am I sure where he came up with any of this. The majority opinion is a rather exhaustive First Amendment doctrinal analysis, and says nothing of either inferences or "sole evidentiary data." In fact the majority refers to the dissent on several occasions, but only for the purposes of pointing out its doctrinal anachronisms, and never mentions logic even once.
After reading the dissent a bit more closely, I'm prepared to withdraw the compliment above. The dissent is actually pretty bizarre, for reasons I'll hopefully get to shortly. In fact the dissenter believes his argument based on the logic textbooks is all that's necessary to find in favor of Rumsfeld et al:
In my view it is not necessary to meet any First Amendment argument because given the evidentiary datum of a military recruiter on campus for a few days, a proper inference may not be drawn that this, in and of itself, supports a factual inference that the law school is violating its anti-discrimination policy. I think that this alone is sufficient to affirm the judgment of the district court. Id. at 253.
Last edited by D. Scarlatti; 08-08-2005 at 02:06 AM.
The Definitive John G. Roberts Thread
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