"We wish the people of Wisconsin would take care of their own business and leave us, and [Big Mountain Jesus], totally alone."

A 50-year-old statue in Montana, put up by the local Knights of Columbus to honor soldiers who had seen statues like this while serving in Italy in World War II, is attacked as unconstitutional by the Freedom From Religion Foundation of Madison, Wisconsin.

The monument is also a local landmark:

“People say, ‘Meet at Jesus at 11.’ Skiers take pictures with him, wrap him up in clothing and put Mardi Gras beads on him.”

Annie Laurie Gaylor, co-president of the Freedom From Religion Foundation says: “It’s terribly important that the religious right not be allowed to manipulate this situation.” (But her organization picked the fight!)

Here's the  “Save Big Mountain Jesus Statue” Facebook page, which links to this article that pre-dates the current controversy:

“I was out on the mountain, kind of exploring,” [Dan Graves] recalled, taking a break from work last week to recount his first encounter with the statue. “Of course, through the fog and the haze, I saw Christ, with his outstretched hands.”

“It was a little surreal,” Graves added.

Anyone who skis or hikes or bikes along Big Mountain’s slopes has likely had a similarly jarring encounter: coming around a bend near the top of Chair 2 to find the life-like concrete rendering of Jesus Christ, gazing out over Whitefish Lake and the Flathead Valley beyond, from a perch above where the trail splits into Ed’s Run, Hibernation and Hellroaring.

So the placement in the landscape heightens the spirituality of the encounter with the religious symbol, but I think removing the statue is not necessary to comply with the Establishment Clause. I go back to what Justice Breyer wrote in one of the 10 Commandments cases that the Supreme Court decided in 2005. Breyer — it's important to note — was the only member of the Court in the majority in both cases.

Justice Breyer quoted the 1963 school prayer opinion written by Justice Goldberg: "[U]ntutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious."

And Breyer concluded that taking down the old stone monument in Texas would "exhibit a hostility toward religion that has no place in our Establishment Clause traditions" and "encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation," which would "create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid."

Big Mountain Jesus is a 50-year-old part of the landscape, so it's probably a good idea to take Justice Breyer's advice seriously and ski clear of divisiveness and a brooding and pervasive devotion to the secular. 

Prof. Chemerinsky says Justice Ginsburg "has in her power the ability to prevent a real shift in the balance of power on the court."

"On the other hand, there's the personal. How do you decide to leave the United States Supreme Court?"

Wow! How much of this kind of moral pressure is being applied to the venerable Justice?

Democrats and liberals have a nightmare vision of the Supreme Court's future: President Barack Obama is defeated for re-election next year and Justice Ruth Bader Ginsburg, at 78 the oldest justice, soon finds her health will not allow her to continue on the bench.

The new Republican president appoints Ginsburg's successor, cementing conservative domination of the court, and soon the justices roll back decisions in favor of abortion rights and affirmative action.

Abortion and affirmative action. Abortion and affirmative action. That's the fixed point in constitutional law for a lot of people: it must work out in favor of abortion and affirmative action.

[S]ome on the left say ... Ginsburg needs to put self-interest aside and act for the good of the issues they believe in, Harvard law professor Randall Kennedy wrote recently. Kennedy said 72-year-old Justice Stephen Breyer should leave, too....

Get out, you selfish oldies — say some on the left — Obama needs to appoint some liberal ideologues before its too late!

David Garrow, a Cambridge University historian who follows the court, said Ginsburg's situation points to an institutional problem for the court, "the arguably narcissistic attitude that longer is better."

Narcissist!

Justices sometimes look at electoral projections when considering retirement, he said, adding that Ginsburg probably still could decide to retire next summer if Obama's electoral prospects seem shaky.

The rest of the article is a history lesson about how waiting too long doesn't work. Earl Warren, LBJ, Richard Nixon, Warren Burger and all that. The message is clear. The liberal media want Ruth Bader Ginsburg out now.

I know that sounds mean, but it's not me saying it. I'm just paraphrasing for clarity.

In the violent video games case, Scalia notes the irony of Alito's strenuous effort to describe the "astounding" violence.

From the majority opinion in the just-decided case of Brown, Governor of California v. Entertainment Merchants Association:

JUSTICE ALITO has done considerable independent research to identify, see post, at 14–15, nn. 13–18, video games in which “the violence is astounding,” post, at 14. “Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. . . . Blood gushes, splatters, and pools.” Ibid. JUSTICE ALITO recounts all these disgusting video games in order to disgust us—but disgust is not a valid basis for restricting expression. And the same is true of JUSTICE ALITO’s description, post, at 14–15, of those video games he has discovered that have a racial or ethnic motive for their violence—“‘ethnic cleansing’ [of] . . . African Americans, Latinos, or Jews.” To what end does he relate this? Does it somehow increase the “aggressiveness” that California wishes to suppress? Who knows? But it does arouse the reader’s ire, and the reader’s desire to put an end to this horrible message. Thus, ironically, JUSTICE ALITO’s argument highlights the precise danger posed by the California Act: that the ideas expressed by speech—whether it be violence, or gore, or racism—and not its objective effects, may be the real reason for governmental proscription.

The Court strikes down a California law that prohibits the sale or rental of "violent video games" to minors. The statute defined violent games in a way that "mimics the New York statute regulating obscenity-for-minors that we upheld in Ginsberg v. New York." But sex and violence are different: "obscenity is not protected expression" under the First and Fourteenth Amendments. California was trying "to create a wholly new category of content-based regulation that is permissible only for speech directed at children." "That is unprecedented and mistaken," the Court says today.

California’s argument would fare better if there were a longstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none. Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jealousy.” The Complete Brothers Grimm Fairy Tales 198 (2006 ed.). Cinderella’s evil stepsisters have their eyes pecked out by doves. Id., at 95. And Hansel and Gretel (children!) kill their captor by baking her in an oven. Id., at 54.

I was reading that out loud here at Meadhouse, and somebody said: "The Supreme Court needs spoiler alerts!" 

High-school reading lists are full of similar fare. Homer’s Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake. The Odyssey of Homer, Book IX, p. 125 (S. Butcher & A. Lang transls. 1909) (“Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crackled in the flame”). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they be skewered by devils above the surface. Canto XXI, pp. 187–189 (A. Mandelbaum transl. Bantam Classic ed. 1982). And Golding’s Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island. W. Golding, Lord of the Flies 208–209 (1997 ed.).

That Homer passage still grosses people out. Even after all the horrible movies and video games they've witnessed.

Alito, by the way, does not dissent. (Remember he was the lone dissenter in the Phelps case, showing the most empathy for sensitive people brutalized by ugly expression.) He thinks that "the experience of playing a video game may be quite different from the experience of reading a book, listening to a radio broadcast, or viewing a movie," and he'd prefer to put off the more difficult free speech questions and  "hold only that the particular law at issue here fails to provide the clear notice that the Constitution requires." That would leave room for legislatures to craft better laws designed to protect minors.

ADDED: The 2 dissenting opinions come from Justices Thomas and Breyer. Thomas relies on originalism: "the founding generation" didn't think First Amendment free speech included a right "to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians." I haven't had the chance to read the entire opinion, but I can see that it contains some detailed discussion about the history of ideas about children. I'll leave that for another post.

Justice Breyer's dissenting opinion reject the facial challenge to the law. He says the "case is ultimately less about censorship than it is about education."

Our Constitution cannot succeed in securing the liberties it seeks to protect unless we can raise future generations committed cooperatively to mak­ing our system of government work.... Sometimes, children need to learn by making choices for themselves. Other times, choices are made for children—by their parents, by their teachers, and by the people acting democratically through their governments.

I'm Bloggingheadsing with Dahlia Lithwick... and it's all about law.

The episode is titled "Funkier Than a Mosquito’s Tweeter" — which is the title of the Tina Turner song I pointed at in my post about Justice Breyer referring to "the tweeter."



Subjects:

The Supreme Court’s real diversity problem
How blogging made Ann bold
Is the real world more of an echo chamber than the Internet?
Do judicial elections make a mockery of justice?
Dahlia: Having three female justices has changed the Court
The problems with France’s anti-burqa law

Justice Breyer on "the tweeter": "I get requests. Can we follow you... That's very nice. Somebody would like to follow me. It's quite flattering."

He doesn't think it's a good idea. But he doesn't know how to turn it off... the "tweeter." (The tweeter? Cue Tina Turner.)



"Judges wear black robes so that they will resist the temptation to publicize themselves, because we really speak for the law. And that is to be anonymous."

This is why I wouldn't want to be a judge. They're supposed to submerge their individuality and self-expression. They're supposed to become neutral expositors of The Law.  Of course, they don't, not entirely, and everyone wants to figure out what they really are like, underneath that judge costume. But we only want to know because we need to understand and predict their opinions, and not because we'd be interested in their opinions if they didn't have the judicial power.

Oh, maybe for some of them we would, but as long as they are judges, engaged in the pretense of anonymity, they don't display much or any interestingness apart from the wielding of power.

Would you want to be interesting largely or solely because of the power you wield? It's nothing you've created, and if you weren't sitting there, in that seat of power, someone else would be, and then they would be all that you now are. What difference then does it make whether it's you or someone else?

The Westboro Baptist Church wins in the Supreme Court in the case about protesting at a soldier's funeral.

"The First Amendment shields Westboro from tort liability for its picketing in this case."

Chief Justice Roberts writes the opinion, with only Justice Alito dissenting. Justice Breyer has a concurring opinion. From the Roberts opinion:

The picketing was conducted under police supervision some 1,000 feet from the church, out of the sight of those at the church. The protest was not unruly; there was no shouting, profanity, or violence....

Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underly- ing the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U. S. 397, 414 (1989). Indeed, “the point of all speech protection . . . is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 574 (1995)....

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here— inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield West- boro from tort liability for its picketing in this case.

Clearly, this is the right outcome.

AND: Alito, the lone dissenter, stresses the value of the tort called "intentional infliction of emotional distress":

Respondents’ outrageous conduct caused petitioner great injury, and the Court now compounds that injury by depriving petitioner of a judgment that acknowledges the wrong he suffered.

In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner.

Breyer's short concurrence makes the point that the decision is limited to in-person picketing about matters of "public concern." In adding that the Court "does not examine in depth the effect of television broadcasting" and "internet postings," I get the sense that he's looking ahead to cases about bullying.

Justice Breyer on the right way for a Supreme Court Justice to: 1. interpret the Constitution, and 2. deal with the President of the United States criticizing him in the State of the Union Address.

Back to that interview Chris Wallace did with Justice Breyer. The earlier post got overlong dealing with the Second Amendment. Now, having taken a break to deal with the new federal court decision invalidating the individual mandate, let's get back to the Breyer interview, beginning here, where he is talking (yesterday) about the as-yet-unreleased case. How can the Supreme Court resolve such a politically hot matter without losing the public's confidence in the legitimacy of the Court?

BREYER: The way not to do it -- hold your finger up to the political winds. That's not the job of the judge. The judges are not politicians... [W]hat we do is we look to the text, the history, the traditions, the precedent, the values that underlie the particular constitutional phrase, and consequences that if you decide this way, does it further the values or does it undermine the values.

There, that's his theory of interpretation, summarized.  The key is identifying values underlying the text and the real-world consequences of the decisions. That may seem to give the judge a lot of leeway, but Breyer's effort is to convince people that this is real judging, even though the stricter textualists say it isn't. If people accept this argument, then they see that the liberal Justices — like the conservative Justices — are doing something that isn't some sort of covert politics and they'll have confidence in the courts.

This brings up the topic of the Justices at the State of the Union address. Wallace shows the video clip of Obama scolding the Justices — who were sitting right in front of him — about the decision in Citizens United. There's also a clip of Chief Justice Roberts saying that he's troubled by the "image... of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering, while the court, according to the requirements of protocol, has to sit there expressionless." Breyer disagrees. It's good for the Justices to hear from people who think different things: "It doesn't bother me and part of me says, 'Good.'"

Justice Stephen Breyer on "Fox News Sunday."

Watch here. Chris Wallace does a great job of needling him about things Breyer's written about constitutional interpretation and, Breyer, as I'd expect, rises to the occasion. Breyer literally waves the Constitution around, in tiny booklet form, and figuratively waves around a bigger book, his book "Making Our Democracy Work."

Now, let's rummage through the transcript. Chris Wallace questions him about "just applying the law as written," and Breyer plugs in the expected elementary lesson about the concision of the phrases in the Constitution and the need to apply them in the changed circumstances of the modern world (airplanes! the internet!), and then Wallace displays the text of the 2d Amendment:

WALLACE: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms" -- the right of the people to keep and bear arms -- "shall not be infringed." Now, Justice, I understand why, as a matter of policy, in a world with a lot of urban violence and big cities, that some people would say we need gun control, particularly in a big city like Washington, as they have here, and in Chicago. You ruled in both of those cases. And in both cases the court voted twice over your dissent that the founders meant what they said, people have a right to bear arms.

Breyer, of course, is ready for this:

BREYER: Yes. Yes. That's a wonderful example because, of course, it's not a matter of policy. It is a matter of what those framers intended. And you saw that first phrase, "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed."  What does that mean, the militia? Historians told us, and the dissenters thought they were right, that what that meant was that James Madison, thinking, "I've got to get this document ratified," was worried about opponents who would think Congress would call up state militias and nationalize them. "That can't happen," said Madison. And therefore, he wrote the Second Amendment to prove it. Now, if that was his motive historically, the dissenters were right.

There's some talk about judges acting like judges and how history can't answer some of the details. How do the old words and the old intent apply to new things? Breyer lists machine guns and torpedoes, and then, deviously, handguns. Wallace responds:

WALLACE: I understand. But it certainly didn't provide for a ban, at least that's what the court's decision was, your court's -- it didn't provide for a ban on all handguns as they have here in Washington, D.C.

BREYER: Are you a sportsman? Do you like to shoot pistols at targets? Well, get on the subway and go to Maryland. There is no problem, I don't think, for anyone who really wants to have...

WALLACE: But -- but it's...

BREYER: ... a gun.

WALLACE: ... but that's a policy issue. That's not a constitutional issue.

Breyer chooses not to jump on this point, perhaps because he'd have to say things that conservatives say. He'd have to promote federalism. Let me sketch it out.

If there isn't a right covering this particular subject, then state and local government will be able to legislate the policies that they, as a community, think are best. Yes, it's a policy issue, and — Breyer would say, if he'd gone on — that's why it's appropriate for legislative bodies to make decisions about it. If you don't like those decisions, the great thing about the United States is that you can move around and go to places that have policy preferences that suit your tastes. You have a right to travel and a right to change your residence to another state. And you also have the right to participate in politics, so there's also the alternative of trying to get the law in your state or city changed, so that handguns are not banned. Breyer's approach to the Second Amendment lets the people make the gun control laws what they want them to be and, when they do, they won't get caught up in litigation over the choices they make.

This is what conservatives say all the time about abortion and the separation of church and state (to cite the 2 most glaring examples). But here's Right Wing News — Chris Wysocki — excoriating Breyer for saying "get on the subway and go to Maryland."

Mind-boggling really, isn't it? Gee little black girl, do you want to go to the same school as white girls? Well, get on the subway and go to Maryland!

Well, no. There is a federal constitutional right covering that point, so you don't get the state-to-state variation. And that's the question: Is it a federal constitutional right or not? When you're arguing that there isn't a right, you're saying the law can vary from state to state. When is that intolerable and when isn't it? We all agree (now) to the uniform resolution of the school segregation problem that excluded decentralized decisionmaking. There is an Equal Protection right.

But there was, recently, a disagreement about the Second Amendment, and Breyer was on the side that thought there was no individual right. Put another way, Breyer's side of the Court thought that decentralized policymaking could govern. Do you think that's terrible? If you believe that there's a right, then, yes, of course, you do. But think of something else, where you think the Court is wrong about saying there's a right — perhaps, for you, abortion — and then, don't you remember all the times you made the argument that it wouldn't be so terrible because individual states could make their own decisions and people could move (or travel) to the states that gave them what they wanted?


Wysocki continues:

So mister, what if you are in a wheelchair? This doctor's office has stairs. If you want to see an accessible doctor, get on the subway and go to Maryland!

Whoa! You think the Constitution obliges private citizens, like doctors, to make their buildings wheelchair accessible?! That's so left-wing! Check your blog's name! What's the "Right Wing News" today, that righties have gone all lefty? That would be news!

***

(I have some more things to say about the Breyer interview, but I'll start a new post for that.)

CORRECTION: Sorry, I had "Chris Matthews" in the first sentence of this post. It's Chris Wallace.

"Her womb was a barren desert in which my seed could find no purchase."

April finally comes up with the quote that my quote from Larry Tribe reminded her of. I was riffing on "Neither Steve Breyer nor Ruth Ginsberg has much of a purchase on Tony Kennedy's mind." The quote that had found purchase in April's brain was from from "Raising Arizona."

What if the odd and arch use of the word "purchase" gained purchase in Larry Tribe's brain because he'd watched "Raising Arizona." Suddenly "the idea of the image Tribe had of Kennedy's brain" is funny in a whole new way. "Justice Kennedy's brain/womb was a barren desert in which Breyer/Ginsburg's seed could find no purchase." Tribe thought Elena Kagan would be much better at.... what?

But it's not such an odd image. We speak of fertilizing minds and seminal ideas and gestating thoughts and mindfucks.

“Neither Steve Breyer nor Ruth Ginsburg has much of a purchase on Tony Kennedy’s mind.”

That's actually the most embarrassing sentence in Larry Tribe's letter to Obama about who to nominate to the Supreme Court.

I love the use of the noun "purchase," meaning, not something you buy, but "A means of increasing power or influence" or "An advantage that is used in exerting one's power." That's the 5th definition of the noun in the 3d edition of the American Heritage Dictionary. Here are some other, related definitions:

2. A grip applied manually or mechanically to move something or prevent it from slipping.

3. A device, such as a tackle or lever, used to obtain mechanical advantage.

4. A position, as of a lever or one's feet, affording a means to move or secure a weight.

You get the idea of the image Tribe had of Kennedy's brain? If you read the whole letter — PDF — you'll see that Tribe thought Justice Souter had "purchase," and he was worried that without Souter, Kennedy would roll toward the "Roberts/Alito/Scalia/Thomos wing of the Court." He thought Elena Kagan — and not Sonia Sotomayor — would operate — as a tackle or lever? — to move "Tony Kennedy's mind."

Kagan, Tribe said, had a way of "gently but firmly persuading a bunch of prima donnas to see things her way in case after case." Of course, he was referring to the prima donna professors at Harvard Law School, and mainly talking about new faculty appointments, which is quite different from persuading Supreme Court Justices about interpretations of law. It's one thing to build a law school community where professors can spout diverse ideologies and still feel like it's a happy, functioning institution. It's quite another to amass votes for a legal proposition that produces an outcome in a case and binds all the courts in the United States.

And if the target of a light touch knows that the most powerful man in the world has selected that approach to prying his brain into a particular political direction, that target ought to become highly vigilant and not get played.

... I think it's clear that a Justice Kagan would be a much more formidable match for Justice Scalia than Justice Breyer has been... in the kinds of public settings in which it has been all to easy for Scalia to make his rigid and unrealistic formalism seem synonymous with the rule of law and to make Breyer's pragmatism seem mushy and unconstrained by comparison.

Tribe says Kagan will be "simultaneously progressive yet principled, pragmatic and yet constrained." That sounds like pragmatism. How does it not "seem mushy" like Breyer's pragmatism? Because it's asserted to be "constrained," while Breyer's pragmatism "seem[s]... unconstrained"? Because it's progressive — steadily aimed in one direction and not more subtly varied?

I'm sure Justice Kennedy doesn't need to be tipped off to this political scheme to clamber over the crusty crags of the convolutions of his brain. But Tribe's letter is amusing reading nonetheless.

Justice Breyer responds to pushback.

Or something.

(Whatever happened to refusing to comment on issues that might reach the Court in real cases? Or is that just get-through-the-Judiciary-Committee blather?)

ADDED: What scares me is the thought that, if Justice Breyer had heard cheers at the hint that he might protect the feelings of Muslims over the free speech of Rev. Jones, he would have gone the other way.

Did Justice Breyer actually say anything about the right to burn the Koran?

Here's the colloquy from today's "Good Morning America":

STEPHANOPOULOS: You know, when we spoke several years ago, you talked about how the process of globalization was changing our understanding of the law. When you think about the internet and when you think about the possibility that, you know, a pastor in Florida with a flock of 30, can threaten to burn the Koran and that leads to riots and killings in Afghanistan, does that pose a challenge to the First Amendment, to how you interpret it? Does it change the nature of what we can allow and protect?

BREYER: Well, in a sense, yes. In a sense, no. People can express their views in debate. No matter how awful those views are. In debate. A conversation. People exchanging ideas. That's the model. So that, in fact, we are better informed when we cast that ballot. Those core values remain. How they apply can-

STEPHANOPOULOS: The conversation is now global.

BREYER: Indeed. And you can say, with the internet, you can say this. Holmes said, it doesn't mean you can shout fire in a crowded theater. Well, what is it? Why? Well people will be trampled to death. What is the crowded theater today? What is-

STEPHANOPOULOS: That's exactly my question.

BREYER: Yes. Well, perhaps that will be answered by- if it's answered, by our court. It will be answered over time, in a series of cases, which force people to think carefully. That's the virtue of cases.

To me, Breyer is doing nothing more than smearing around the usual platitudes about how judges interpret law and decide cases in the context of ever-changing real world facts and let's have a fine day in the classroom cogitating about the elaborateness of all that.

But maybe you think he's revealing that he thinks that ill-behaved hot-heads in other countries are changing the scope of our First Amendment freedoms, now that the internet transmits every local free speaker's performance art around the world.

IN THE COMMENTS: XWL said:

Unsaid, but implicit, Breyer:

'What fun we could have re-interpreting the Constitution if only Scalia and Thomas would drop dead while we still have Obama as President and a Democratic majority in the Senate'

Seems like he knows there isn't a plurality of justices that agree with his implied stance that freedom of speech should be limited based on the global sensitivities, so he dances around saying what he really wants to say.

If Scalia, Thomas, Roberts or Alito were to leave, and we had the likes of Breyer in the majority in the Supreme Court, all sorts of new 'rights' would be established, and all sorts of old rights would be curtailed.

I think you're right. By the way, "he dances around saying what he really wants to say" has a second meaning, which I know you didn't intend.

The Court's new separation of powers opinion.

Here's the opinion in Free Enterprise Fund v. Public Company Accounting Oversight Board, in which the conservative Justices — Roberts, Scalia, Kennedy, Thomas, and Alito — take the strong position on enforcing the constitutional principles of separation of powers, and the liberal Justices — Breyer, Stevens, Ginsburg, and Sotomayor — take the position of judicial restraint.

It's a question of restricting the President's power "to remove a prin­cipal officer, who is in turn restricted in his ability to remove an inferior officer, even though that inferior officer determines the policy and enforces the laws of the United States." (The law that sets up this new structure, the Public Company Accounting Oversight Board, is the Sarbanes-Oxley Act of 2002, which regulates the accounting industry.)

Alito: Heller "points unmistakably" to the conclusion that the Second Amendment applies to state and local government through the 14th Amendment's Due Process Clause.

In this morning's opinion in McDonald v. City of Chicago, Justice Alito writes for a majority, explaining the doctrine of incorporation with useful clarity. The question to be answered is: "whether the right to keep and bear arms is fundamental to our scheme of ordered liberty... or as we have said in a related context, whether this right is 'deeply rooted in this Nation’s history and tradition" (page 19 of the opinion).

Applying that standard:

Our decision in Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, and in Heller, we held that individual self-defense is “the central component” of the Second Amendment right.... (stating that the “inherent right of self-defense has been central to the Second Amendment right”). Explaining that “the need for defense of self, family, and property is most acute” in the home, we found that this right applies to handguns because they are “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family”.... Thus, we concluded, citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.”

Heller makes it clear that this right is “deeply rooted in this Nation’s history and tradition.”

Justice Alito — at page 42 — rejects the 4 factors that Justice Breyer, in his dissenting opinion, argues should affect incorporation:

First, “there is no popular consensus” that the right is fundamental; second, the right does not protect minorities or persons neglected by those holding political power; third, incorporation of the Second Amendment right would “amount to a significant incursion on a traditional and important area of state concern, altering the constitutional relationship between the States and the Federal Government” and preventing local variations; and fourth, determining the scope of the Second Amendment right in cases involving state and local laws will force judges to answer difficult empirical questions regarding matters that are outside their area of expertise. Even if we believed that these factors were relevant to the incorporation inquiry, none of these factors undermines the case for incorporation of the right to keep and bear arms for self-defense.

"My wife calls me Mr. Clueless."

Says Justice Scalia, sitting next to Justice Breyer, who seems quite a bit less clueless.

The Supreme Court's new federalism decision.

United States v. Comstock, today's Supreme Court case upholding the federal civil-commitment statute, deals only with the question whether Congress has an enumerated power to make a law that authorizes the continued detention of sexual dangerous or mentally ill persons after they have completed serving their federal prison sentences. That is, the case is not about whether there is an individual right to be free of this deprivation of liberty — only whether the federal government can do it.

On this federalism question, the Court relies on the Necessary and Proper Clause of the Constitution. The persons who are detained have, in every case, been convicted of federal crimes. If there was federal power to create those crimes and to impose criminal punishment for them, then why wouldn't it follow that the federal government could do something more to those individuals? Justice Breyer writes for the majority: "the same enumerated power that justifies the creation of a federal criminal statute... justifies civil commitment...."

[T]he statute is a “necessary and proper” means of exercising the federal authority that permits Congress to create federal criminal laws, to punish their violation, to imprison violators, to provide appropriately for those imprisoned, and to maintain the security of those who are not imprisoned but who may be affected by the federal imprisonment of others. The Constitution consequently authorizes Congress to enact the statute.

Justice Kennedy writes separately to note that federalism concerns have been adequately tended to: "this is a discrete and narrow exercise of authority over a small class of persons already subject to the federal power." Ditto Alito: "This is not a case in which it is merely possible for a court to think of a rational basis on which Congress might have perceived an attenuated link between the powers underlying the federal criminal statutes and the challenged civil commitment provision. Here, there is a substantial link to Congress’ constitutional powers."

Justice Thomas dissents (joined by Justice Scalia):

Absent congressional action that is in accordance with, or necessary and proper to, an enumerated power, the duty to protect citizens from violent crime, including acts of sexual violence, belongs solely to the States....

Not long ago, this Court described the Necessary and Proper Clause as “the last, best hope of those who defend ultra vires congressional action.” ... Regrettably, today’s opinion breathes new life into that Clause, and... comes perilously close to transforming the Necessary and Proper Clause into a basis for the federal police power that “we always have rejected"... In so doing, the Court endorses the precise abuse of power Article I is designed to prevent—the use of a limited grant of authority as a “pretext . . . for the accomplishment of objects not intrusted to the government.”

"To many members of the public, this Court’s main entrance and front steps are not only a means to, but also a metaphor for, access to the Court itself."

"This is why, even though visitors will remain able to leave via the front entrance, I find dispiriting the Court’s decision to refuse to permit the public to enter."

Justice Breyer predicts a flood of Supreme Court cases about the new health care law.

"'You have passed a 2,400-page bill,' Breyer told the committee members, and he guessed that in such a lengthy bill, 'there are a lot of words in it.' As a result, he said, 'in two or three of four years,' nobody will be asking justices about the shortage of cases, because litigation stemming from the bill will be filling the Court's docket."

Our favorite atheist, Christopher Hitchens, takes up arms in the War on Christmas.

"[T]he placement of a creche surrounded by a motley crew of humans and animals has no more Scriptural warrant than does 'The Life of Brian.'"

But the lack of "Scriptural warrant" for the modern American form of the Christmas celebration isn't where Hitchens is going with this piece. In fact, it's because Christmas is religious that he's opposed to the Christmas decorations in the public part of the White House. Why isn't it enough, he asks, that there are Christmas decorations on all sorts of private property?

It is not the business of the Chief Executive to take any part in this business, and he has already sworn an oath to put the Constitution first, last and above all. This oath is not general but specific, which means that any detail however trivial is important. May his daughters' stockings be well-stuffed, may a mythical Saint Nick from ancient mythology delight them, may visions of sugar-plums dance in their heads, and may they be little drummer girls for baby Jesus but please, not in the parts of the White House that belong to the world's first secular Republic.

Can you imagine what a fool Barack Obama would be if he took on the project of banishing Christmas decorations from the White House? He of all Presidents — because his Christianity has been questioned — needs to put on the usual display. Oh, we could credit him with bravery if he made this his issue, but his political power is at stake, and I don't want a Commander in Chief who throws away power to gesture at an ideal. And, ironically, it would be the sort of gesture that would stir up political opposition and tend to lead to bold gestures in the other direction if Obama is ousted in 2012. Better to stand on the middle ground and adopt an easygoing maintenance of American Christmas traditions in the White House.

But quite aside from that — assume some other President taking Hitchens's teachings to heart — what is the good of taking away the evergreens and lights that make the darkest part of winter feel especially warm and happy? Does the Constitution require sanitizing religion out of public spaces? It was quite recently — in the case about the stone 10 Commandments monument — that the sensible, practical Justice Breyer wrote:

Where the Establishment Clause is at issue, tests designed to measure “neutrality” alone are insufficient, both because it is sometimes difficult to determine when a legal rule is “neutral,” and because

“untutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious.” [School Dist. of Abington Township v. Schempp.]

... [T[he relation between government and religion is one of separation, but not of mutual hostility and suspicion...

Justices Goldberg and Harlan concluded in Schempp that

“[t]he First Amendment does not prohibit practices which by any realistic measure create none of the dangers which it is designed to prevent and which do not so directly or substantially involve the state in religious exercise or in the favoring of religion as to have meaningful and practical impact.”

Peace, Christmastopher.

"Now, if they put a noisy hot dog stand that keeps you up at night, doesn't that violate the statute?"

"Well, you can have quiet hot dog stands during the daytime."

Justices Breyer and Scalia concern themselves with hot dogs (transcript PDF) in a case about whether public access to newly added beach is a "taking" of the property of homeowners who previously had private beach extending all the way to the water:

“You didn’t lose one inch,” Justice Stephen G. Breyer told the lawyer for the owners, D. Kent Safriet. “All you lost was the right to touch the water. But the court here says you in effect have that right because you can walk right over it and get to the water.”

The new strip of land is as wide as 75 feet in places, and the public has access to it.

“If somebody wanted to put up a hot dog stand on this new land,” Chief Justice John G. Roberts Jr. asked, “would you have the right to tell them they can’t?”

“Absolutely not,” Mr. Safriet answered.

Justice Breyer said the relevant law did protect the owners’ right to enjoy their land in peace, meaning they could at a minimum ban “a noisy hot dog stand that keeps you up at night.”

Justice Antonin Scalia found the middle ground, as it were. “You can have quiet hot dog stands during the daytime,” he said.

Justice Sonia Sotomayor added that even before the beach project, “a hot dog stand could have sat in the water.”