The individual mandate — er, tax — in the Affordable Care Act has been upheld. The President’s signature initiative survives. The reputation of the Court is untarnished. Chief Justice Roberts’s legacy as a steward of the Court’s institutional reputation is strengthened.
It’s a happy day for the Court, the President, and people who sometimes need health care. The opinion is bad news for Justice Kennedy (if Roberts will swing, who needs Kennedy?) and, I think, the belly dancers who were in front of the Court this morning (their political leanings aren’t as easy to discern as their midriffs).
But, of course, there was other action at the Court today. The Court affirmed a bedrock principle of our democracy — we have a right to lie. Sort of….
Permitting the Government to decree this speech to be a criminal offense would endorse government authority to compile a list of subjects about which false statements are punishable. That governmental power has no clear limiting principle.
Justice Scalia speaking last night at Wesleyan University.
Last night, Justice Antonin Scalia delivered the prestigious Hugo Black Lecture at Wesleyan University, speaking in the university’s Memorial Chapel before a packed house. Wesleyan is an uber-liberal school — the basis for the movie PCU, about a very Politically Correct University — and Justice Scalia’s visit was preceded by campusprotests (dubbed “Occupy Scalia”). But I was pleasantly surprised by how respectful and appreciative the audience was of Justice Scalia’s deeply thoughtful and persuasive remarks; the protests during his speech were minor and clustered near the end.
I trekked up to Middletown from New York City to attend the lecture. What did Justice Scalia have to say? And what did the protests entail?
Ed. note: Due to the Presidents’ Day holiday, we will be on a reduced publication schedule today. We will still be publishing, but less frequently than usual.
* “Based on history, it’s tough to make the case that there should be mandatory protection [for Supreme Court justices].” That may be so, but the fact that Justice Stephen Breyer was robbed by machete point should at least make the case for SCOTUS sword fighting lessons. [New York Times]
* And speaking of the Supreme Court, this week the justices will hear arguments over the constitutionality of the Stolen Valor Act, which criminalizes lies about military service. Unfortunately, this means you will all have to wait to hear about the time Lat and I fought through 25 Taliban sharpshooters with only our pocket knives in order to save an entire orphanage from certain annihilation. [Fox News]
* Two female students at the University of Oregon School of Law accused a male student of drugging and raping them. How did the student body respond? A listserv flame war, of course. [Portland Oregonian]
* Attorneys representing survivors in the Costa Concordia crash claim that traces of cocaine were found in the hair of the ship’s captain. I’m not sure how, but this needs to be the basis for a Head and Shoulders commercial. [Philadelphia Inquirer]
* Heads are rolling over at ESPN after the network made several unfortunate references to a “chink in the armor” of New York Knicks phenom Jeremy Lin. Yes, we get it. Everyone’s a little bit racist. [ESPN via Deadspin]
Can gay marriage be stopped? Professor Tribe thinks not.
* Professor Laurence Tribe on “the constitutional inevitability of same-sex marriage.” [SCOTUSblog]
* You can sleep when you’re dead — and you can prevail against the IRS in litigation, too (as the late Ken Lay just did). [TaxProf Blog]
* Speaking of the dead, just because someone is burglarizing your business doesn’t mean you can kill them. [Jonathan Turley via WSJ Law Blog]
* Professor Daniel Hamermesh asks: “Why not offer legal protections to the ugly, as we do with racial, ethnic and religious minorities, women and handicapped individuals?” [New York Times via ABA Journal]
* Professor Larry Ribstein: “Law is waiting for its Steve Jobs (or Bill Gates). When he or she arrives it could be a lot more important than the iPhone.” [Truth on the Market]
* This juror should at least have put the defendant on “Limited Profile.” [Fort Worth Star-Telegram]
There’s always something fun going on in the Ninth Circuit. Last week, the Court voted against rehearing en banc in United States v. Alvarez, a case raising the constitutionality of the Stolen Valor Act (a law that essentially criminalizes false claims of military heroism). A divided three-judge panel struck down the Act on First Amendment grounds, and the Ninth Circuit voted against reconsidering that decision en banc.
Judge Diarmuid O’Scannlain (disclosure: my former boss) wrote a spirited and persuasive dissent from the denial of rehearing en banc, on behalf of himself and six other judges. The dissenters argued that the Act passes constitutional muster and that the First Amendment does not protect knowingly false statements of fact (subject to certain exceptions not presented by the law). The position that the Stolen Valor Act is constitutional is shared by a number of prominent scholars, including First Amendment guru Eugene Volokh.
But this is far from an open-and-shut case (unlike many of the Ninth Circuit cases that generate dissents from denial of rehearing, which we’ve previously described as the “Bat Signal” flashed by right-of-center Ninth Circuit judges to the Supreme Court when the lefties run amok). On the other side of the Alvarez case was Chief Judge Alex Kozinski — Professor Volokh’s former boss, and a jurist who, like Judge O’Scannlain, is often vindicated by SCOTUS smackdowns of Ninth Circuit liberals.
(Digression: I don’t like it when two of my most favorite federal judges cross swords! It’s like watching a fight between My Two Dads. I’d much rather see the two of them join forces against the Emperor Palpatine and She Who Must Not Be Named.)
Chief Judge Kozinski wrote a rather colorful concurrence to the denial of rehearing en banc. Some hilarious highlights from it, plus a fun movie-related tidbit from His Honor, after the jump.
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The last time I flapped my wings your way, I tried to make at least enough noise about your mobile phone to make you more than a little bit uncomfortable. I hope I did. If enough of us become anxious enough about the known and unknown unknowns and knowns in our mobile phones, then we can start making wise decisions about how to manage that information and its resultant investigations.
Today, I’d like to put a finer point on the last installment’s topic by asking a question that seemed to catch most attendees off-guard at a conference panel that I moderated last week: is there discoverable personal information in a mobile app? Our panelists’ answer was a uniform “yes” with one stating that, if he had to choose only one type of data that he could discover from a mobile phone, he’d choose app data. Why? Because there’s simply so much of it and because almost all of it is objective – not just user-created like an email – but machine-tracked like GPS, usage duration, log in and log out times, browsed web addresses, browsed actual addresses. Also, most of us seem to have the idea that data doesn’t actually “stick” to our mobile devices the way it “sticks” to our hard drives. Maybe there’s a disconnect based on the fact that our phones are mobile so we assume the data is mobile to?
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The individual mandate — er, tax — in the Affordable Care Act has been upheld. The President’s signature initiative survives. The reputation of the Court is untarnished. Chief Justice Roberts’s legacy as a steward of the Court’s institutional reputation is strengthened.
