After a brief respite, I am back with the latest round up of the blawgosphere’s must-read posts and articles:

• From the “elections have consequences” file, Justice John Paul Stevens is retiring from the Supreme Court of the United States. And while Stevens’s successor won’t change the balance of the Court, it is unquestionably a missed opportunity.
• Justin Driver dispels “The Stevens Myth” over at the New Republic. Money quote:

“If liberals have been disappointed with recent Court decisions, imagine how dreary constitutional conditions would be had Republicans competently selected justices to implement their preferred judicial vision.”

• NPR’s Nina Totenberg wonders whether Justice Stevens’s retirement will lead to a Supreme Court without a single Protestant justice:

(more…)

Today is a good day to reflect on these words of wisdom from our founder and friend, the late (and great) Fr. Richard John Neuhaus:

Good Friday is not just one day of the year. It is a day relived in every day of the world, and of our lives in the world. In the Christian view of things, all reality turns around the “paschal mystery” of the death and resurrection of Christ. As Passover marks the liberation from bondage in Egypt, so the paschal mystery marks humanity’s passage from death to life. Good Friday cannot be confined to Holy Week. It is not simply the dismal but necessary prelude to the joy of Easter, although I’m afraid many Christians think of it that way. Every day of the year is a good day to think more deeply about Good Friday, for Good Friday is the drama of the love by which our every day is sustained . . . . If what Christians say about Good Friday is true, then it is, quite simply, the truth about everything. (From Death on a Friday Afternoon)

Amen.

Et dicebat ad Iesum Domine memento mei cum veneris in regnum tuum

For those of you who live within driving distance of South Bend, Indiana (or are willing to fly to the promised land), the 5th Annual Notre Dame Right to Life Conference will be held during Easter Week, April 9th and April 10th, with Francis Cardinal George serving as the keynote speaker. Other speakers include George Weigel (Ethics and Public Policy Center), Joan Lewis (EWTN), Father Thomas Berg (Westchester Institute), and Dr. Maureen Condic (Westchester Institute). And here’s the best part, registration is free. So, if you’re interested in attending this wonderful conference, please visit this link for additional details.

Oh, and go Irish!

Well, it’s good to be back. I apologize for my lack of blogging this past month, but the law really is a jealous mistress. With that said, there’s a lot of jurisprudential ground to cover, so let’s get to it.

First and foremost, and contrary to the rumors on the “Internets,” Chief Justice John Roberts is not going anywhere (“JGR would sooner die—literally—than give Obama the chance to appoint his successor”). Suffice it to say, I heart the Chief. Indeed, every day I strive to write in a manner worthy of being characterized as Robertsesque.

And from the “elections have consequences” file, President Obama nominates penumbra-loving Professor Goodwin Liu to serve as a judge on the Ninth Circuit. Ed Whelan is on the case (see, here, here, here, here, here, here, here, here, and here), and Kyle of People for the American way is less than pleased.

President Obama has also nominated Dawn Johnsen, a proabortion extremist, to be the Assistant Attorney General for the Office of Legal Counsel. Thankfully, her nomination appears to be in jeopardy.

For my Second Amendment peeps, you can read the oral argument in McDonald v. Chicago here. SCOTUS Blog kindly rounds up commentary on the McDonald argument here. Howard Bashman provides links to additional commentary here.

It looks like President Obama intends to reverse his decision to prosecute Khalid Sheikh Mohammed in a civilian court (more here).

And on a separate, but perhaps somewhat related note, Liz Cheney claims that there are terrorist sympathizers inside the Department of Justice. Suffice it to say, not everyone agrees with this assertion.

Three of the judges from the Seventh Circuit, where I clerked, testified this past week in the criminal trial of a blogger who encouraged his readers to murder them over a judicial opinion (i.e., the McDonald case noted supra).

At least one liberal agrees that tort reform should be part of any health-care reform bill enacted by Congress.

Judge Kevin Fine: Poster boy for judicial activism.

So, you want to attend law school? Here’s some sound advice on choosing the right school (with more to follow).

On a lighter note, here are the “10 most interesting Oscar-related lawsuits ever” (LvATL)

Well, suffice it to say, it’s been an exciting week or so for law nerds. Here is the latest round up of the best o’ the blawgosphere:

The Citizens United case generated a slew of interesting, must-read commentary. Here’s a taste of it:

• Jan Crawford’s “Supreme Court Ruling Will Cause Major Upheaval in Campaigns,” and “Obama Skewers Court–and Signals Change Ahead.”
• Professor Rick Garnett’s “Citizens United and corporations’ speech-goals.“
• Professor Eugene Volokh’s “Money and Speech,” “Citizens United and the Mainstream Media,” and “Lessened Corporate First Amendment Rights and Media Corporations.”
• Professor Ilya Somin’s “Should People Acting through Corporations be Denied Constitutional Rights Because Corporations are ‘State-Created Entities?‘”, “Why Restrictions on Corporate Speech Reduce Political Equality,” and “People Organized as Corporations are People Too.”
• Professor Stephen Bainbridge’s “Citizens United v FEC: The First Amendment Rights of Corporate “Persons,”  ”Citizens United, Corporate Personhood, and Nexus of Contracts Theory,” and “Citizens United v. FEC: Stevens’ Pernicious Version of the Concession Theory.”
• Anthony Dick does a fine job of defending Citizens Unitedover at NRO’s Bench Memos.

Jan Crawford discusses the possibility of Justice Stevens retiring from the Supreme Court at the end of this term.

Professor Jonathan H. Adler defends President Obama and Justice Alito.

Justice O’Connor still refuses to leave the stage.

The AP reports that there will be ”no manslaughter defense in abortion doc’s slaying.”

The Supreme Court has granted the NRA’s request for argument time in McDonald v. City of Chicago. It probably didn’t hurt that the NRA is represented by former Solicitor General Paul Clement.

Professor Rob Natelson v. Professor Akil Amar on the constitutionality of Obamacare.

In case you were wondering, there is no constitutional right to dance in the Jefferson Memorial.

A state appellate law clerk “is out of a job after ghostwriting claim.”

In a monumental 5-4 decision, the Supreme Court of the United States held today, in Citizens United v. Federal Election Commission, that, inter alia, corporate speech regarding political candidates is protected by the First Amendment. On the other hand, the Court did uphold certain campaign disclosure rules.

I have not yet had a chance to read the opinion, so analysis and details to follow (time permitting).

O.k., my fellow law geeks, here is this week’s round up of the blawgosphere’s most interesting posts/articles:

Is the Health Insurance Mandate constitutional? Professor Randy Barnett answers this question in the negative, and Professor Jack Balkin answers it in the affirmative.

Breyer v. Scalia: My money is on Nino.

Robertson v. Satan: Res Ipsa Loquitur, people.

Should the Supreme Court issue anonymous opinions?

Here are twenty movies that every law student should see, according to the good folks at Legal Writing Prof Blog.

And from the “You can’t make this stuff up” file, a divided Supreme Court “revived a convicted Georgia rapist and murderer’s bid for a new trial, saying a jury’s sexually suggestive gifts to the judge and bailiff raised the possibility of improper contact.”

In the “Dog Bites Man” category, President Obama intends to nominate yet another philosopher king to the already radically leftist Ninth Circuit. This will, no doubt, please Jeffrey Toobin to no end.

Oh, and in other shocking news, some federal judges don’t examine each and every clerkship application they receive. Shocking, I know.

Professor Matthew J. Franck explains why states do not have the power to recall their United States senators.

Is there a growing “conservative anti-death-penalty movement“?

The lovely and brilliant Jan Crawford wonders whether there is “double vision at the White House.”

Quote of the Week (from Letters to a Young Lawyer, by Arthur M. Harris):

Remember, a lawsuit is a fight, and the quick thinking, accurately-speaking and level-headed man is the one who will win, and without resorting to mayhem to do it, either.

The Supreme Court blocks the Prop. 8 trial from being aired, and Professor Orin Kerr offers some interesting thoughts on the decision here.

Professor Matthew J. Franck on the health care reform bill and conservative “judicial activism.”

The Supremes may know the law, but the NFL? Not so much.

Judge Posner on “causation.” (Via HJB)

The Oxford word of the year: “unfriend.”

Are there too many lawyers and law schools?

Professor Steven Douglas Smith has a fascinating new essay available on SSRN, entitled “Originalism and the (Merely) Human Constitution.” (Via Legal Thory Blog)

Robert A. Goldwin, RIP

Today marks the one year anniversary of Father Richard J. Neuhaus’s death. At the time of his passing, words failed me. And even now, I still find it difficult to adequately express just how deeply Father Neuhaus impacted my life.

My spiritual journey with Father Neuhaus began in earnest while I was living in South Bend, Indiana, and clerking for Judge Daniel A. Manion. During the first year of my clerkship, one of my co-clerks, Elizabeth, engaged in a not-so-subtle, but ultimately successful, campaign to get me to subscribe to First Things. We would be in the midst of a lively political or theological conversation, and, inevitably, Elizabeth would look at me, and with a teacher-knows-best smile say, “You know, there was an excellent piece on this very issue in the latest edition of First Things. You really should subscribe.” After being subjected to this gentle reproach on  more than one occasion, I finally relented, and joined the illustrious ranks of ROFTERS. And that simple decision, my friends, dramatically changed the course of my life.

You see, folks, at the time I began my subscription to First Things, I was a committed Southern Baptist with a strong Calvinist streak (and a big John Piper fan). Nevertheless, I had always been intrigued by Catholicism, and greatly admired the Church’s clear and unequivocal opposition to abortion (as well as its teachings on other societal issues). As such, the journal’s overtly Catholic tenor did not bother me in the least bit. What I cared about was further exploring the common ground between Catholics and Evangelicals on issues near and dear to all social conservatives. Needless to say, First Things did not disappoint.

But along the way, my interest in reading First Things moved beyond mere politics, and into the more weighty matters of the Christian faith. To put it plainly, Father Neuhaus’s spell-binding prose rekindled my life-long fascination with Catholicism, and this, in turn, triggered a year-long examination of faith that ultimately resulted in my conversion.

I remember thinking shortly after I joined the Church that I should write Father Neuhaus, and let him know about the significant role he played in my journey to the Catholic faith. Unfortunately, I never got around to sending that letter. Suffice it to say, this is something I deeply regret.

In any event, today is a day to remember and honor a great man by renewing our commitment to bear witness to the truth in all things (as he did), regardless of the consequences.

Father Neuhaus, pray for us.

O.k., sportsfans, here is this week’s round up for the blawgosphere:

The Ninth Circuit issued a controversial ruling this week holding that prisoners in the State of Washington have the right to vote. Roger Clegg offers his thoughts on the decision here.

Chief Justice Roberts, fiscal conservative.

Lawyers behaving badly.

A Georgia judge resigned from the bench “after questions [were] raised about [certain] Facebook contacts [he engaged in].”

SCOTUS Blog has a list of cert. petitions that law geeks may want to keep an eye on.

Yes, Virginia, there are law firms that “tweet.”

According to The Hill, “Republicans see the courts as the last line of defense vs. Democrats’ agenda.”

And to no one’s surprise, former SCOTUS clerks are faring quite well in these troubled economic times.

Here are this week’s must-reads from the blawgosphere:

Ed Whelan explains why Justice Sonia Sotomayor’s Senate confirmation process was a “political triumph of judicial conservatism.” 

Retired Justice Sandra Day O’Connor is apparently no fan of states electing their justices/judges.

Joan Biskupic, author of “American Original: The Life and Constitution of Supreme Court Justice Antonin Scalia,” has a new blog, “Court Beat,” where she is already discussing, inter alia, the likelihood of Justice Stevens retiring at the end of this term. 

The United States Court of Appeals for the Sixth Circuit issued a decision holding that the Second Amendment does not encompass the right of “an unlicensed individual to possess unregistered machine guns for personal use.” And somewhere, Dale Gribble weeps.

So, you think your job is difficult? Try walking a mile in Frank J. Colucci’s shoes. This is a man who set out to write, and eventually published, a book seeking to ”prove” that Justice Anthony M. Kennedy “displays a coherent approach to constitutional interpretation.”

Scalia v. Choate: Nino’s ongoing campaign against a “misbegotten word.”

Above the Law has the “Five Best Motions of the Year.” Personally, I am a big fan of this “Motion to Continue.”

As noted by Wesley J. Smith, Montana is the third state to permit doctor-assisted suicide (much to Julian Felsenburgh’s glee).

For some time now, I’ve been meaning to do a weekly round up of interesting law-related articles that I stumble across in the blawgosphere. So, with that brief introduction, here is my first installment of “Corpus Juris”:

Is the Health Care Reform Bill Unconstitutional? (Professor Richard A. Epstein @Point of Law)

“In Supreme Court Clerks’ Careers, Signs of Polarization” (Adam Liptak @ NYT’s Sidebar)

“In Defense of Supreme Court Law Clerk Polarization” (Professor Ilya Somin @ The Volokh Conspiracy)

Does Justice Ginsburg have Heller in her sights? (David Kopel @ The Volokh Conspiracy)

Justice Napolitano? (Ed Whelan @ NRO’s Bench Memos)

“SCOTUS takes on Sexting” (Kashmir Hill @ Above the Law)

NPR profiles Solicitor General Elena Kagan.

“The Influence of Law Blogs on the Judicial Process” (J. Robert Brown @ The Race to the Bottom)

The Ultimate Law Geek Gifts: A Visual History of SCOTUS and Season 1 and Season 2 of “The Paper Chase” television series (Hat tip: WSJ Law Blog).

This is stunning, yet wonderful news:

[O]n the morning of October 20, 2009, the Holy See has, by Apostolic Constitution, provided the canonical vehicle for Anglican Christians to be received into full communion with the Catholic Church.

The report goes on to note, inter alia, that:

Expectations had been that, in response to the formal petition of the “Traditional Anglican Communion” for a vehicle for corporate entry into full communion, the Holy See would offer a juridic structure under Canon Law similar to the “personal prelature” which is the global organizing vehicle for the ecclesial movement Opus Dei. In essence it provides a “floating” global Diocese wherein the prelature has its own Bishops and its own priests while welcomed alongside of the existing Dioceses of the Catholic Church.

However, the announcement from Rome is much farther reaching and, for Vatican watchers, nothing short of spectacular in its implications for Anglican Christians seeking a place in the Church captained by the successor of Peter. Pope Benedict XVI has offered to establish “Personal Ordinariates”, the structure offered for those in the military, within which to care for Anglicans, lay and clergy, while enabling them to maintain the liturgical and spiritual unique distinctives of their tradition. That is correct, the Roman Catholic Church by way of an “Apostolic Constitution” will provide the process which will allow for Anglican Christians to enter into the full communion of the Catholic Church.

Please do read the entire article.

Professor Gerard V. Bradley has an interesting and thoughtful piece up today over at NRO, in which he laments the demise of numerous Catholic colleges/universities and encourages Catholics to bring the faith to secular schools (where the vast majority of Catholics are now being educated):

We need a new paradigm for delivering Catholic higher education. It is time to go where the Catholic students are. More than 80 percent of them attend non-Catholic institutions, where the Church’s mission has long been limited to pastoral care: On campus or at nearby Newman Centers students attend Mass, go to confession, and meet other Catholics. We must ratchet this menu of options up — way up — to include serious and sustained intellectual formation. The goal should be to establish, at or near every college with a substantial Catholic student population, a free-standing center devoted to intellectual formation, to the cultivation of the Catholic mind.

This is the other Catholic higher education.

While I am strongly encouraging my son to attend an authentic Catholic college (see, e.g., Thomas Aquinas College), I wholeheartedly agree with Professor Bradley that Catholics must do much more to assist our children in the (continued) formation of their faith while attending secular colleges/universities (and even the vast majority of so-called Catholic schools). The stakes are simply too high to do otherwise.

If you’re a law nerd, you will thoroughly enjoy John P. Elwood’s brilliant and irreverent article, “What were they thinking?: The Supreme Court in Revue, October Term 2008,” which appears in the most recent issue of The Green Bag. Here’s a taste of Elwood’s biting and hilarious prose:

Frank Wagner hasn’t even finished scouring Justice Breyer’s majority opinions for first-person singular references yet and already a consensus has begun to form in the media commentary about the Term. In short, it is that Chief Justice Roberts, while masquerading in umpire garb as a judicial minimalist, is actually a conservative activist who, along with Justices Scalia, Thomas, and Alito, is bent on taking the Court “just as far to the right, and just as fast, as Justice Kennedy will let them.” Under this view, Roberts actively seeks to erode precedents favoring criminal defendants, abortion rights, the environment, humanity, cuddly woodland animals, and even Oprah, secure in the knowledge that likely retirements will be from the ranks of the Court’s more liberal members, so replacements will not slow the steady march right. Maybe this time it will be different, but the landfills are brimming with the Maalox bottles of Reagan-Bush officials who are still wondering what became of the last inevitable steady march right.

And it only gets better from there.

So, if you’re the type of person who finds this cartoon humorous, then this article is tailor made for you. Enjoy!

The always thoughtful Professor Orin Kerr recently penned a post expressing his disagreement with “lawyers or bloggers” who maintain “that the Supreme Court should not rely on the doctrine of stare decisis.” As one of the more outspoken opponents of constitutional stare decisis, I feel compelled to briefly respond to the good professor’s post.

Before addressing Professor Kerr’s argument, I want to commend him for attempting to fairly present the viewpoint of those who maintain that the doctrine of stare decisis has little to no bearing in the constitutional-law context:

The argument against stare decisis is a simple one: It’s the Supreme Court’s job to get it right, and the Justices can’t get it right if they follow past decisions that may have gotten it wrong. As a result, the Supreme Court should always try to get it right, and it should only follow past cases to the extent the current Justices think the old decisions are correct. The goal should be loyalty to the Constitution, not loyalty to old cases by old courts.

As to the last sentence, all I can say is “Amen!” I do, however, take issue with Professor Kerr’s assertion that my camp believes the Supreme Court “should only follow past cases to the extent the current Justices think the old decisions are correct.” The issue for many originalists, of course, is not whether a prior decision is “correct,”  but whether the reasoning/holding of that case is based on a plausible interpretation of the constitutional text at issue. If it is, and a substantial body of case law has been built upon the foundation of this decision, then it is perfectly reasonable for a justice to let that precedent stand as is (even if that justice would have ruled differently as a matter of first impression). But this type of “hard” originalist case is not at the center of the “stare decisis” debate. The question, plainly put, is this: At what point does it cease to matter that a prior Supreme Court decision is nonsense on stilts?

For those of us in the (Clarence) Thomas Camp, the answer is: Never. A Supreme Court decision that has no basis in the text, history, or structure of the Constitution is always and forever a judicial abomination, no matter how much time passes (e.g., Dred Scott v. Sandford, Plessy v. Ferguson). For the Burkean originalist (see, e.g., Scalia), the answer is: It depends on whether the line of jurisprudence is no longer controversial (i.e., it has essentially become woven into the fabric of the Constitution—whatever in the heck that means). Finally, for the living constitutionalist, the answer is: It depends on whether the decision in question enshrines into the Constitution a preferred policy preference (e.g., Roe v. Wade=Stare decisis is sacrosanct!; Bowers v. Hardwick= Stare decisis is fo’ suckas!). In comparing the foregoing approaches to constitutional interpretation, it doesn’t take a law degree to recognize which one is concerned with, well, actual interpretation of the relevant text.

So, when Professor Kerr laments “that a world in which there was really no stare decisis at the Supreme Court . . . would be a serious mess,” my response is: “It cannot be any worse than a world in which the Supreme Court consistently ignores the plain and original meaning of the Constitution and engages in judicial policy making.”

In any event, the prudential concerns expressed by Professor Kerr in his post cannot and do not lessen a Supreme Court justice’s duty to faithfully interpret the Constitution. If a prior supreme court decision cannot be squared with the plain/original meaning of the Constitution, then that decision should be overruled with impunity, regardless of its jurisprudential vintage. Whatever utility the doctrine of stare decisis might have in the constitutional-law context, it cannot be used as a vehicle for amending the Constitution by judicial fiat.

The popular apologetics organization, Catholic Answers, is suing the IRS for intimidating churches and other non-profit groups into remaining silent on controversial social issues like abortion and embryonic stem cell research. You can read more about the lawsuit here.