Fourth Amendment Issues

From the Seattle Times, Friday 31 March, 2006

Lawsuit threat ends use of dogs for random school searches

By The Associated Press

NINE MILE FALLS, Wash. – The threat of a lawsuit has ended the use of dogs for random drug searches in the middle and high schools of this town northwest of Spokane, officials said.

Dogs from Interquest Detection Canines were wrong about 85 percent of the time they indicated something was amiss at the start of the program in January 2004, but the main issue was the students' constitutional rights, according to the American Civil Liberties Union of Washington and the Center for Justice, which announced the change Thursday.

From the Kansas City Star, Sunday 26 March 2006:

Mobile print policy clarified
By BENITA Y. WILLIAMS
The Kansas City Star

Simple traffic stops will not be enough for police officers to demand on-the-spot fingerprint scans when portable devices are tested in the coming months, Kansas officials say.

“If you’re pulled over for speeding, the law doesn’t allow me to take your fingerprint,” said Attorney General Phill Kline. “If you’re wanted or a fugitive, then I can arrest you because there’s a bench warrant. Then we take fingerprints to ensure identification, that you are the person who is wanted.”

He said the same rules would apply to the mobile scanners.

Kline and other state officials clarified how the devices would be used after concerns arose last week that police would use them anytime they stop someone for a traffic violation. The devices were unveiled Tuesday. Kansas law allows police to take fingerprints from people arrested under a list of circumstances,

click through to see if you qualify.

Constitutional Law and Foreign sources, continued

This is a lengthy email on a Law and Courts Discussion list, by someone much more versed than me about international (Kim Scheppele)

the international influence was a factor in Lawrence v. Texas(2003)]
European Court of Human Rights decisions were cited in the text, not just as ornament, but as persuasive authority for the point that "Western civilization" (which presumably includes the 45 countries that are under the jurisdiction of that court) has largely come to the view that anti-gay laws are mere prejudice not historic morality. It has been less noticed, but in Ginsburg's concurrence in Grutter (joined by Breyer) earlier in the week, she cites not only the International Convention for the Elimination of All Forms of Racial Discrimination (which the US has ratified) but also the Convention for the Elimination of Discrimination against Women (which the US has not).

The brief (PDF)urging the international arguments in Lawrence was submitted to the Court with Harold Koh as Counsel of Record and with able research assistance from a group of students at the Yale Law School. It reviewed the significant international jurisprudence in favor of striking down anti-sodomy laws (the Colombian and South African Constitutional Court decisions are particularly bold) and shows how many countries have acknowledged that gay rights are human rights. And it also compiles a wonderful collection of quotations from some of the current justices (some in opinions, some in speeches) about the need to look at international sources. For those who haven't seen the brief (or who haven't been part of the substantial conversations in comparative constitutional law where gay rights have been triumphing in jurisdiction after jurisdiction), ...

And it is true that US Supreme Court justices have been getting progressively more criticism from their fellow justices elsewhere for being so parochial. At international conference after international conference, judges from other courts can cite chapter and verse of US Supreme Court decisions but the US justices barely know the jurisdictional rules for these other courts. Perhaps Lawrence is one way to redress the balance just before a number of them head off for other countries and this year's round of (perhaps less) embarrassing summer meetings with judges from other courts..

Constitutional Law and Foreign Sources

In class we discussed this relative to the death penalty for offenders under 18 and for the mentally retarded.

Here is an excerpt from Scalia's dissent in Roper v. Simmons (2005),

The Court thus proclaims itself sole arbiter of our Nation’s moral standards–and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.

One response to this, on the ConLawProf discussion list, is this:

The USSC has been citing foreign cases for centuries. In 2002 I did some quick and dirty research to discover that the USSC has cited cited to Blackstone's Commentaries at least 350 times, many using Blackstone as an authority for our law. The Court has also cited the great English jurist, Chief Justice Lord Mansfield more than 325 times. The Court has over 190 citations to the Magna Carta. The court has cited Montesquieu', Locke, Grotious, etc. The Court often relied on the works of Story, who cited and quoted from European legal commentators all the time. In other words, the Supreme Court and most other American courts, from the very beginning, relied on foreign law and foreign precedents. To offer just easy eample, we borrowed the fellow servant rule from England in the 1840s.

The author of this post then asks us to consider one of the arguments for those who support the posting of the 10 commandments in courthouses, that they provide a basis for our laws.

Back to Scalia, who argues for American exceptionalism:

the basic premise of the Court’s argument–that American law should conform to the laws of the rest of the world–ought to be rejected out of hand. In fact the Court itself does not believe it. In many significant respects the laws of most other countries differ from our law–including not only such explicit provisions of our Constitution as the right to jury trial and grand jury indictment, but even many interpretations of the Constitution prescribed by this Court itself. The Court-pronounced exclusionary rule, for example, is distinctively American.

As we see with constitutional interpretation, application of principles can be done in interesting ways. The principle "We are different" may lead to the exclusionary rule, and executing juveniles. What principle might lead to support of both the exclusionary rule, and not executing juvenile offenders? (what might a due process model adherent say?).

Here is an excerpt of a second post on the ConLawProf list

There's a special problem with the death penalty, which is that the Supreme Court has interpreted the Eighth Amendment to bar punishments that are cruel and unusual in light of "evolving standards of decency." Here the question is over what population do we assess what those evolving standards are, and not (I think) really over whether non-U.S. norms generally are properly taken into account in interpreting the Constitution.

...Because the controversy has arisen only recently, there's relatively little authoritiative [writing] on it. In my view, Vicki Jackson, Ambivalent Resistance and Comparative Constitutionalism: Opening up the Conversation on “Proportionality,” Rights and Federalism, 1 U. PA. J. CONST. L. 583 (1999) (available at http://www.law.upenn.edu/conlaw/issues/vol1/num3/jackson/jackson_tf.html) remains the best introduction.

Finally, I link to this New Yorker article:

SWING SHIFT
How Anthony Kennedy’s passion for foreign law could change the Supreme Court.
by JEFFREY TOOBIN
Issue of 2005-09-12
Posted 2005-09-05

Scalia and "interpretation"

Its interesting to have characters on the court, eh?

Photographer: Herald got it right
By Marie Szaniszlo
Thursday, March 30, 2006 - Updated: 09:39 AM EST

Amid a growing national controversy about the gesture U.S. Supreme Court Justice Antonin Scalia made Sunday at the Cathedral of the Holy Cross, the freelance photographer who captured the moment has come forward with the picture.
“It’s inaccurate and deceptive of him to say there was no vulgarity in the moment,” said Peter Smith, the Boston University assistant photojournalism professor who made the shot.
Despite Scalia’s insistence that the Sicilian gesture was not offensive and had been incorrectly characterized by the Herald as obscene, the photographer said the newspaper “got the story right.”
Smith said the jurist “immediately knew he’d made a mistake, and said, ‘You’re not going to print that, are you?’ ”
Scalia’s office yesterday referred questions regarding the flap to Supreme Court spokeswoman Kathy Arberg, who said a letter Scalia sent Tuesday to the Herald defending his gesture at the cathedral “speaks for itself.”
“He has no further comment,” Arberg said.
Smith was working as a freelance photographer for the Boston archdiocese’s weekly newspaper at a special Mass for lawyers Sunday when a Herald reporter asked the justice how he responds to critics who might question his impartiality as a judge given his public worship.
“The judge paused for a second, then looked directly into my lens and said, ‘To my critics, I say, ‘Vaffanculo,’ ” punctuating the comment by flicking his right hand out from under his chin, Smith said.
The Italian phrase means “(expletive) you.”

follow the link to read how difficult it is to faithfully interpret constitutional jurist's gestures. Although the utterance, if made, seems to help.

Presidential Power, Judicial Power, Scalia, Lawyers and Congress

All of those things are brought together in a case argued before the court today:

High Court to Review Guantanamo Case
Challengers say military tribunals permit Bush to act as lawmaker, prosecutor, judge and jury. Congress has complicated the debate.
By David G. Savage
Times Staff Writer

March 28, 2006

WASHINGTON — In a long-awaited test of executive power, the Supreme Court today will take up a constitutional challenge to President Bush's decision to try alleged war criminals before specially arranged military tribunals at Guantanamo Bay, Cuba.

It is an authority the president's lawyers say is part of his power as commander in chief. The challengers, including current and former military lawyers, say the tribunals are unfair and unconstitutional because they permit the president, acting through Defense Secretary Donald H. Rumsfeld, to act as lawmaker, prosecutor, judge and jury.

But this momentous dispute over the role of law during wartime may well end in a non-decision, thanks to a late intervention by Congress.

In December, lawmakers heaped praise on themselves for outlawing the use of torture against prisoners. They did so by adding an amendment sponsored by Sen. John McCain (R-Ariz.), a former prisoner of war, to a military spending bill. At the same time, they inserted a provision in the bill saying that detainees at the Navy base at Guantanamo Bay had no right to have their claims heard in federal court.

The case has also made headlines for a report on Justice Scalia's announced views:

Scalia's Recusal Sought in Key Detainee Case
Retired Officers Say Justice's Impartiality Is in Question After Remarks on Combatants

By Charles Lane
Washington Post Staff Writer
Tuesday, March 28, 2006; A06

On the eve of oral argument in a key Supreme Court case on the rights of alleged terrorists, a group of retired U.S. generals and admirals has asked Justice Antonin Scalia to recuse himself, arguing that his recent public comments on the subject make it impossible for him to appear impartial.

In a letter delivered to the court late yesterday, a lawyer for the retired officers cited news reports of Scalia's March 8 remarks to an audience at the University of Freiburg in Switzerland. Scalia reportedly said it was "crazy" to suggest that combatants captured fighting the United States should receive a "full jury trial," and dismissed suggestions that the Geneva Conventions might apply to detainees at Guantanamo Bay, Cuba.

update: This story from The Legal Times reports that most of the legal community stands against the Bush Adminsitration (although only 5 votes really count...)

Top Law Firms Join Forces in Landmark Detainee Case

Tony Mauro
Legal Times
03-28-2006

When the U.S. Supreme Court hears arguments today in a landmark dispute over executive power in wartime, the Bush administration will be outnumbered -- if not outgunned.

Many of the nation's top law firms have signed briefs against the government and in support of Salim Hamdan, the detainee who allegedly served as chauffeur to Osama bin Laden and who is being detained at Guantanamo Bay, Cuba.

More than three dozen briefs have been filed on Hamdan's side, largely arguing that the military tribunals established by the White House to try the detainees are illegal. By contrast, only a handful of briefs have been filed on the other side, backing the administration's expansive view of executive authority.

Damn ACLU...or not?

"The blue-chip firms are all in this case, and it's the senior partners who are involved very often," said David Remes, the Covington partner who coordinated the amicus curiae effort for Hamdan. "This is not a tousle-haired, wild-eyed group of lawyers."

Adds New York University Law School professor Burt Neuborne, who also filed a brief for Hamdan: "This is not noblesse oblige by the big firms. It is an extraordinary no-confidence vote by the establishment bar in what the administration is trying to do here."

Neuborne said the only recent parallel was the effort 50 years ago by New York firms to help desegregate public schools.

Finally, a story in Slate.com has an interesting angle on "legislative intent" regarding the Detainee Treatment Act (see Emily Bazelon, Invisible Men

In a brief they filed with the Supreme Court, [Sens. Lindsey Graham, R-S.C., and Jon Kyl, R-Ariz] argue that Congress kicked Hamdan's current case out of court when it passed the Detainee Treatment Act last December.

The senators base their argument on the "legislative history" of the DTA—the official statements that members of Congress make about a bill leading up to its passage, as captured in the Congressional Record. In other words, Graham and Kyl cite themselves: in particular, an "extensive colloquy" between the two that appears in the Record on Dec. 21, 2005, the day of the DTA's passage. Justice Department lawyers for the Bush administration rely on the same colloquy as evidence that "Congress was aware" that the DTA would strip the Supreme Court of jurisdiction to hear "pending cases, including this case" brought by the Guantanamo detainees.

The problem is that Kyl and Graham's colloquy didn't actually happen on Dec. 21. It was inserted into the Congressional Record just before the law passed, which means that the colloquy did not alert other members of Congress to the views it contains.

Bazelon goes on to talk about the unreliability of legislative intent, citing Scalia, for one, who does not trust it. And who could blame him? Bazelon makes clear that the two senators appear intent on misleading the justices:

Their brief states that "the Congressional Record is presumed to reflect live debate except when the statements therein are followed by a bullet … or are underlined" (their italics). The colloquy appears in the record without a bullet or underline; ergo, the brief implies, it must be live. The colloquy is even scripted to sound live.

She provides the link to C-span to allow you to see with your own eyes what senate staffers attest: the exchange never occurred.

Is this a "Terry Shh-top"?

Courtesy one of your classmates, this story:

Texas arresting people in bars for being drunk

Thu Mar 23, 11:39 AM ET

SAN ANTONIO, Texas (Reuters) - Texas has begun sending undercover agents into bars to arrest drinkers for being drunk, a spokeswoman for the Texas Alcoholic Beverage Commission said on Wednesday.

The first sting operation was conducted recently in a Dallas suburb where agents infiltrated 36 bars and arrested 30 people for public intoxication, said the commission's Carolyn Beck.

Being in a bar does not exempt one from the state laws against public drunkenness, Beck said.

Judicial Power, checks and balances

In class on Thursday 3.23 I made reference to backlash against the Courts in the 1960s. I would hope, as students of American politics, we would understand contemporary examples -- such as the cover story for Friday's USA Today:

Same Sex Marriage Battles Escalate

Nineteen states have such bans. Most have been adopted since November 2003, when Massachusetts' highest state court said same-sex couples have a right to marry under state law. Massachusetts then became the first state to give marriage licenses to gay and lesbian couples.

Besides battling over the substance of a right, people battle over decisionmakers' powers. In the January- February 2006 Judicature, Lauren Bell and Kevin Scott have an article, “Policy statements or symbolic politics? Explaining congressional court-limiting attempts.” They report on their efforts at

collecting and analyzing individual-level data on a variety of congressional court-limiting measures introduced by members of the United States House of Representatives between the 93rd and 106th congresses. Inquiry is restricted to the House because the vast majority of court limiting bills originated there (132 during the period of study, as compared with 29 in the Senate). Three hypotheses are tested: that members of Congress introduce court limiting legislation to promote personal and public policy goals, to protect themselves electorally, and to represent their constituents. The findings indicate that more senior members of Congress as well as ideologically more conservative members introduce court-limiting legislation, and such efforts are related to their constituents’ levels of support for the federal judiciary.

War on Terror, Executive Power

Administration urges dismissal of detainee lawsuits over Guantanamo detention

By TONI LOCY Associated Press Writer

(AP) - WASHINGTON-Faced with hundreds of claims by detainees at Guantanamo Bay, a federal appeals court is pressing the Bush administration to say how much power it thinks judges will have to determine the legality of the detentions.

The three-judge panel is being asked to decide whether the Detainee Treatment Act, signed by President George W. Bush on Dec. 30, retroactively voids hundreds of lawsuits by abolishing a right to challenge detentions that has been part of U.S. legal principles since the nation's founding.

Judges David B. Sentelle and A. Raymond Randolph seemed willing to accept the administration's view that the act forces dismissal of more than 200 lawsuits filed in U.S. District Court here on behalf of more than 300 detainees.

No one on the panel, however, appeared to agree with the administration's take on what would happen next should detainees seek essentially to transfer their challenges to the appeals court.

Also related to the Administration's far-reaching claims of presidential authority is action in the senate: one measure seeks to ratify executive-oredered wiretapping, while Senator Specter is still interested in holding hearings.

Bill Would Allow Warrantless Spying
GOP Plan Would Bring Surveillance Under Review of Congress, FISA Court

By Charles Babington
Washington Post Staff Writer
Friday, March 17, 2006; Page A05

The Bush administration could continue its policy of spying on targeted Americans without obtaining warrants, but only if it justifies the action to a small group of lawmakers, under legislation introduced yesterday by key Republican senators.

The four senators hope to settle the debate over National Security Agency eavesdropping on international communications involving Americans when one of the parties is suspected of terrorist ties. President Bush prompted a months-long uproar when he said that constitutional powers absolve him of the need to seek warrants in such cases, even though the 1978 Foreign Intelligence Surveillance Act requires warrants for domestic wiretaps.

It is far from clear whether the bill can win passage. Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) -- whose panel plays a major role in the surveillance matter -- pointed his thumb down yesterday when asked about the measure. He said he particularly objects to letting the government "do whatever the hell it wants" for 45 days without seeking judicial or congressional approval.

Search and Seizure Case:

Wednesday the Supreme Court decided Georgia v. Randloph holding that there is no "consent" exception to the Fourth Amendments's requirement of a warrant when one spouse is present and flatly refuses consent (Randolph's estranged wife granted consent, while Randolph flatly said "no.") The vote was 5-3, with Roberts Scalia anad Thomas dissenting, and Alito not participating.

Linda Greenhouse reports in Thursday's New York Times, Roberts Dissent Reveals Strain Beneath Court's Placid Surface. Besides this being the first of Roberts' three dissenting votes accompanied by an opinion, Greenhouse writes,

what was striking about the decision in Georgia v. Randolph, No. 04-1067, was the pointed, personal and acerbic tone in which the justices expressed their disagreement over whether the Fourth Amendment's ban on unreasonable searches was violated when the police in Americus, Ga., arriving at a house to investigate a domestic dispute, accepted the wife's invitation to look for evidence of her husband's cocaine use.

some other highlights:

The majority missed the point, the chief justice said; the fact is that someone choosing to share space has also, already, chosen to share privacy.

In turn, Soutuer responded that there is a false analogy between sharing a secret, and sharing a domocile.

Finally,

Justice Souter also attacked as a "red herring" a warning by Chief Justice Roberts that the rule the court was adopting would hamper the ability of the police to protect victims of domestic violence.

Greenhouse interprets this as an attempt to gain Breyer's vote, based on questions that Breyer asked during oral argument. The reference is also interesting given a pair of cases argued on Monday, 3/20/06 whether the 6th Amendment's right to face one's accusers means states may not admit indirect testimony of spousal abuse -- can records of 911 calls and statements given to police
be used to prosecute an alleged abuser, when the spouse refuses to testify in Court?

Justice Scalia is portrayed as quite protective of the right to confront accuserrs, but the same Seattle Times article notes

Chief Justice John Roberts appeared to give prosecutors and police the benefit of the doubt in both cases.

Roberts was skeptical when Davis' lawyer suggested that prosecutors, armed with powerful 911 tapes, might keep "bad" witnesses off the stand to win their cases.

Independent Judiciary

Here is a follw up to the last post before break, O'Connor Unloads:

Supreme Court Justice Reveals Death Threats
By GINA HOLLAND, AP

WASHINGTON (March 16) - Supreme Court Justice Ruth Bader Ginsburg said she and former Justice Sandra Day O'Connor have been the targets of death threats from the "irrational fringe" of society, people apparently spurred by Republican criticism of the high court.

Interestingly, th AOL story includes two webpolls that serve to prime irritation at the court:

Should international jurisprudence be considered by American judges?
Yes
No

Should juveniles ever be elligible for the death penalty?
Yes
No

No doctrinal context, no pro / con arguments, simply a question of what we prefer.

One more excerpt from the posting:

Security concerns among judges have been growing.

Conservative commentator Ann Coulter joked earlier this year that Justice John Paul Stevens should be poisoned. Over the past few months O'Connor has complained that criticism, mainly by Republicans, has threatened judicial independence to deal with difficult issues like gay marriage.

The AOL piece and a New York Times article Year After Shootings, Calls to Increase Judges' Security, published Sunday, report the same statistics:

Attorney General Alberto R. Gonzales said this week that three-quarters of the more than 2,000 federal judges had sought home security systems paid by the government.

O'Connor unloads

Legal Affairs
O'Connor Decries Republican Attacks on Courts

Listen to this story... by Nina Totenberg

Morning Edition, March 10, 2006 · Newly retired Supreme Court Justice Sandra Day O'Connor took on conservative Republican critics of the courts in a speech Thursday. She told an audience at Georgetown University that Republican proposals, and their sometimes uncivil tone, pose a danger to the independence of the judiciary, and the freedoms of all Americans.

click through to listen to the 3 minute story.

Rights of association

Here is a story from the LA Times on a California Court upholding Berkeley's anti-discrimination policy.

In BOY SCOUTS OF AMERICA et al. v. DALE (2000) the Supreme Court ruled that the Boy Scouts are free to keep gays from being scoutmasters, under the first amendment freedom of association guarantee.

Berkeley had provided a berth for Sea Scouts free, until the Scouts would not sign Berkeley's nondiscrimination policy. The Scouts sued. Thursday, a unanimous California Supreme Court ruled,

The state high court's decision gives cities and government agencies the ability to impose antidiscrimination conditions on any group that receives a public benefit. The ruling was one of a handful across the country in which courts have permitted government agencies to exclude the Boy Scouts from programs because the Scouts bar gays and atheists.

Further,

The case attracted widespread interest. Groups weighing in the litigation on behalf of the Sea Scouts included the Church of Jesus Christ of Latter-day Saints, the National Catholic Committee on Scouting and the National Club Assn.

Supporting Berkeley were the League of California Cities and California Assn. of Counties, the Anti-Defamation League, the Lawyers' Committee for Civil Rights and three foundations of the American Civil Liberties Union.

Is this the same as the Military recruiting case in law schools, decided by the Supreme Court on Monday? In Rumsfeld v. FAIR (2006) the court ruled 8-0 that Congress was within its power to condition aid to higher education on letting military recruiters have the same access to interviewing law students as other potential employers. Law schools argued that the military's "don't ask, don't tell" policy violated the law school's nondiscrimination policy -- in essence, Congress's Solomon Amendment gave the military special, not equal, access, in that the military did not have to promise to treat students in a nondiscriminatory manner.

Who is doing the discriminating -- the military? the law schools? Berkeley? the Scouts? Bottom line: if we give you money, or a benefit, we can place conditions on that benefit.

Constitutionalism, redux

We have moved past constitutionalism and executive authority in our studies; not so in the real world.

In Sunday's Washington Post, an article reports on US efforts to reduce the number of people being held at Guantanamo Bay Detention Facility. The second paragraph reinforces what we discussed, an executive branch seeking to diminish any checks on it. The first paragraph is more interesting: we are looking to influence other constitutions, as well.

A Fate Worse Than Guantanamo?
The U.S. Has an Obligation to the Prisoners It Is 'Releasing' Overseas

By Eric Umansky
Sunday, March 5, 2006; Page B07
The United States is negotiating with Afghanistan, Saudi Arabia and Yemen to return nearly all the detainees who are from those countries. In Afghanistan and Yemen, the men will reportedly be housed in U.S.-funded prisons. Talks on the possible wholesale transfers have been going on since last summer. Among the apparent sticking points: Afghanistan, like most countries, has a constitution that doesn't allow for prisoners to be held indefinitely without trial.

Meanwhile, the administration is pushing to remove the one check that exists on the transfers. Since the Supreme Court ruled nearly two years ago that Guantanamo detainees have access to federal courts, prisoners there have been able to challenge plans to move them to countries where they might face abuse. After all, such transfers would violate an anti-torture treaty the United States has signed. But in the administration's view, that avenue for appeal shouldn't exist: The government argues that the recently passed Graham-Levin amendment, which limits detainees' access to the courts, applies to the cases already filed on behalf of nearly all detainees. If that view prevails, it will close out the possibility of using the cases to challenge pending transfers or even have detainees' lawyers be notified about them.

Supreme Court Ideology Project

We have made reference to the attitudinal model -- an "external explanation" for what Courts do. This webpage from a couple Standford folk keeps a running tab of justices, relative to other justices.

Supreme Court Ideology Project
Political Science Computational Laboratory
Stanford University

This website uses Bayesian ideal point estimation to update our beliefs about the location of Supreme Court justices. We begin with a prior belief about the location of each justice and update these beliefs after each opinion delivered by the court, learning from the justices' votes what their underlying ideologies are likely to be. Our prior beliefs for Justices Rehnquist, O'Connor, Breyer, Ginsburg, Scalia, Thomas, Kennedy, Stevens and Souter are based on their voting history over the past two years. By contrast, our prior beliefs about the ideologies of Alito and Roberts are somewhat more subjective — based on our knowledge about the President's beliefs and past information about the justices' history and confirmation hearings.

The main questions of interest focus on these new justices and what we can infer about their ideological position relative to the other sitting justices and to the justices they replaced. We are able to obtain estimates of these relative locations as well as estimates of each justice's probability of being the most conservative justice or being, for example, more conservative than the justice he replaced.

The animation on the left side of the page shows the updating process at work. If you don't see a moving picture to the left, you can download Flash here. It plots the posterior density for each justices ideal point — what our belief should be about each justice's location — updating after each vote to the present time.

Texas Redistricting: Who enforces the Constitution?

This report comes from Lyle Deniston at Scotusblog.comAnalysis: Much of "DeLay map" may survive

The most telling comment by him came midway in the argument of the challengers to the Texas plan. Kennedy suggested that it would be "very dangerous" if the Court were to take away from state legislatures the authority to reopen a districting plan that was found to be excessively partisan. Leaving open the option of drawing new districts within a single decade, he said, would act as "a control mechanism," with legislators on notice that if they "over-reached" in creating partisan advantage, that could be corrected. The comment suggested that Kennedy does, indeed, think that partisanship was, potentially, a constitutional problem and that legislatures needed flexibility to deal with it. His emphasis, though, was more on a legislative corrective than a judicial one.

"D'oh!""

Study: More know 'The Simpsons' than First Amendment rights
CHICAGO (AP) — Americans apparently know more about The Simpsons than they do about the First Amendment.

Far more Americans can identify Lisa, Marge, Maggie, Homer and Bart than the First Amendment freedoms.

Only one in four Americans can name more than one of the five freedoms guaranteed by the First Amendment (freedom of speech, religion, press, assembly and petition for redress of grievances.) But more than half can name at least two members of the cartoon family, according to a survey. (Related video: Knowledge of freedoms lacking)

The study by the new McCormick Tribune Freedom Museum found that 22% of Americans could name all five Simpson family members, compared with just one in 1,000 people who could name all five First Amendment freedoms.