Loony Rehnquist?

Ken AshfordSupreme CourtLeave a Comment

Interesting: The FBI’s file on former Chief Justice William Rehnquist — made public more than a year after his death — offers insight into hallucinations and other symptoms of withdrawal that Rehnquist suffered when he was taken off a prescription painkiller in 1981. A doctor was cited as saying that Rehnquist, an associate justice of the Supreme Court at the … Read More

Supreme Court Preview

Ken AshfordSupreme CourtLeave a Comment

The first Monday in October is coming, which means it’s time for the Supreme Court to don their robes and do . . . things. Back in the day, I used to blog more about the Supreme Court, partly because I had to prepare continuing legal education materials as part of my job.  I don’t do that anymore, unless a … Read More

The Winger Response To Hamdan

Ken AshfordRight Wing Punditry/Idiocy, Supreme Court, War on Terrorism/TortureLeave a Comment

Entirely predictable. They’re getting all outraged and pulling the "activist judges" crap.  Here, for example, is the editorial at NRO: As yesterday’s decision again demonstrates, this Court would rather impose its preferences on us than simply follow the law. We should find this unacceptable in any case. But when the consequences of the Court’s arrogance rise to the level of … Read More

Hamdan Perspectives

Ken AshfordBush & Co., Supreme Court, War on Terrorism/TortureLeave a Comment

What Hamdan means — and doesn’t mean: There’s plenty of good analysis at OrinKerr.com and of course SCOTUSBlog. Orin Kerr also cites an interesting New Yorker piece about David Addington, Bush’s "legal mind behind the war on terror"  It’s pretty clear from the Hamdan decision that Addington, among others, were simply barking up the wrong tree.  The article quotes an … Read More

Article 3 Interpretation

Ken AshfordSupreme Court3 Comments

Eugene Volokh notices something in the Hamdan decision.  It appears that none of the justices –even the dissenters — take the position that Article 3 doesn’t apply to Gitmo detainees (although Scalia and Alito are silent). Even Thomas, Volokh notes, seems to agree — although he disputes the particular interpretation to be applied to Article 3.  Volokh quotes Thomas at … Read More

More on Hamdan: Torture and the Geneva Conventions, AUMF and FISA

Ken AshfordSupreme Court, War on Terrorism/TortureLeave a Comment

Marty Lederman has pinpointed the BIG news about Hamdan decision, which is this: More importantly, the Court held that Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today’s ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, … Read More

SCOTUS News

Ken AshfordCampaign Finance Reform, Courts/Law, Crime, Environment & Global Warming & Energy, Supreme Court, War on Terrorism/TortureLeave a Comment

Lot of things coming from the Supreme Court today.  I’ll combine it all here: (1)  In Hudson v. Michigan, a recent controversial decision involving the "knock & announce" tactics of police raids, Scalia apparently "twisted the words" of an eminent criminolgist to reach his conclusion.  The criminiologist complains here. (2)  SCOTUS announced today that it will hear a case about … Read More

Hudson v. Michigan

Ken AshfordSupreme CourtLeave a Comment

Like many, I haven’t read the SCOTUS opinion regarding the knock-and-announce case, but I’ve read intelligent summaries.  My view of it mirror that of Glenn Reynolds, with whom I usually disagree: I think, though, that it’s defensible legally, but not morally. That is, it’s not much of a stretch from the existing caselaw, but it produces a rule that seems … Read More

Net Neutrality Again

Ken AshfordSupreme CourtLeave a Comment

Look, I know it’s a boring issue, but it is important. Fortunately, via Digby, there’s a good analogy which explains the issue quite well: What the telecoms are trying to get away with is like this: suppose you ran a business, and your product was delivered by FedEx, with your customers paying FedEx for it.  Now suppose FedEx came to … Read More

SCOTUS Report: Rumsfeld v. Hamdan

Ken AshfordSupreme Court, War on Terrorism/TortureLeave a Comment

To hear Lyle Denniston tell it, the government had a rough day in front of the Supreme Court justices today, and the "existing ‘military commission’ scheme may well fail".  Good. And no, Scalia didn’t recuse himself, although he opined on the subject matter earlier this month. Denniston’s analysis: With Justice Antonin Scalia taking part — and, in fact, providing the … Read More

Lying To SCOTUS — Not A Good Idea

Ken AshfordCongress, Courts/Law, Supreme Court, War on Terrorism/TortureLeave a Comment

The full story is here; I’ll just give the funny bits. Today, the Supreme Court is scheduled to hear the case of Rumsfled v. Hamdan.  At issue in the case is whether a provision in last year’s Detainee Treatment Act ("DTA") effectively strips the Court of jurisdiction to hear Hamdan’s case.  The Government contends that it does. In support of … Read More

Scalia Recusal

Ken AshfordSupreme Court, War on Terrorism/TortureLeave a Comment

According to Think Progress: Newsweek reports that in a controversial unpublicized March 8 speech, Scalia “dismissed the idea that the detainees have rights under the U.S. Constitution or international conventions.” “War is war, and it has never been the case that when you captured a combatant you have to give them a jury trial in your civil courts,” he says … Read More

SCOTUS Limits Warrantless Searches

Ken AshfordConstitution, Crime, Supreme Court, Wiretapping & SurveillanceLeave a Comment

One thing that struck me in law school, and to this day, is how often the U.S. Supreme Court visits the issues of searches under the Fourth Amendment. Seriously.  Every year they take a couple of these cases, it seems.  I don’t even pay attention any more. But this morning, the Court addressed an interesting issue: consent searches.  Consent searches … Read More

Former Justice O’Connor Smacks The GOP Around

Ken AshfordRepublicans, Supreme CourtLeave a Comment

Amy Sullivan has the goods: Retired Supreme Court Justice Sandra Day O’Connor gave a speech yesterday at Georgetown in which she slammed Republicans–singling out Tom DeLay and John Cornyn–for undermining the judiciary. (You can listen to NPR coverage of the speech here.) She quoted DeLay’s attacks on the court during Justice Sunday, and then turned on the sarcasm: "This was … Read More