Saturday, June 25, 2005
Random questions
So I'm sitting at work on Saturday afternoon (because I sent out a draft to a partner and said I would be available over the weekend), reading the previous week's Supreme Court decisions. It makes me wistful for my clerkship days when I was expected to read them as my job.
In any event, here are random comments as I go through them.
Mid-Con Freight Systems, Inc. v. Mich. Pub. Svc. Comm'n. Is anyone else bothered by the first sentence of Justice Kennedy's dissent? "The Michigan Court of Appeals, in my view, erred in holding that [the state statute] is not a registration requirement." Would Kennedy, J., really rule that a state court had misinterpreted a state statute? Maybe not. As a preemption case, the case necessarily involves a sphere marked out by a state statute and a sphere marked out by a federal statute. Considering only conflict preemption, where there is an overlap, the state statute cannot govern. When a state court holds "no preemption," is that a holding about the scope of the state statute or of the federal statute? Is there any principled way to answer that question?
Kelo. Somewhere in the blogosphere there was a discussion of Stevens' fn. 18. It was suggested that fn. 18 seemed out of place. The theory was that an earlier draft of the opinion had proposed "rules" that local legislatures could not step over without getting reversed, and that although those "rules" were deleted, the fn. had remained in by accident. (Found it: the comment is here.)I don't think that is the case at all. I think fn. 18 is a natural fit, serving as a promise of judicial vigilance.
The sentence to which fn. 18 is attached says that "the hypothetical cases posited by petitioners can be confronted if and when they arise." And the fn. cites a 1928 dissent by Holmes that "The power to tax is not the power to destroy while this Court sits." The comment linked above queried why Stevens would need to cite a 1928 dissent that provides only tangential support for the proposition that the Court will decide the case before it (and not future hypothetical cases).
But clearly the cite has a different intent that the commenter thinks. For, as every 1L learns, the power to tax is the power to destroy. Holmes' is a statement that judicial vigilance can prevent such destruction. So too here, Stevens avers, "while this Court sits" the people need not fear the destruction of property rights. Whether that averment is accurate is a different question. For the moment I am satisfied that fn. 18 fits where it is, and that the hypothesized deleted text never existed in the first place.
In any event, here are random comments as I go through them.
Mid-Con Freight Systems, Inc. v. Mich. Pub. Svc. Comm'n. Is anyone else bothered by the first sentence of Justice Kennedy's dissent? "The Michigan Court of Appeals, in my view, erred in holding that [the state statute] is not a registration requirement." Would Kennedy, J., really rule that a state court had misinterpreted a state statute? Maybe not. As a preemption case, the case necessarily involves a sphere marked out by a state statute and a sphere marked out by a federal statute. Considering only conflict preemption, where there is an overlap, the state statute cannot govern. When a state court holds "no preemption," is that a holding about the scope of the state statute or of the federal statute? Is there any principled way to answer that question?
Kelo. Somewhere in the blogosphere there was a discussion of Stevens' fn. 18. It was suggested that fn. 18 seemed out of place. The theory was that an earlier draft of the opinion had proposed "rules" that local legislatures could not step over without getting reversed, and that although those "rules" were deleted, the fn. had remained in by accident. (Found it: the comment is here.)I don't think that is the case at all. I think fn. 18 is a natural fit, serving as a promise of judicial vigilance.
The sentence to which fn. 18 is attached says that "the hypothetical cases posited by petitioners can be confronted if and when they arise." And the fn. cites a 1928 dissent by Holmes that "The power to tax is not the power to destroy while this Court sits." The comment linked above queried why Stevens would need to cite a 1928 dissent that provides only tangential support for the proposition that the Court will decide the case before it (and not future hypothetical cases).
But clearly the cite has a different intent that the commenter thinks. For, as every 1L learns, the power to tax is the power to destroy. Holmes' is a statement that judicial vigilance can prevent such destruction. So too here, Stevens avers, "while this Court sits" the people need not fear the destruction of property rights. Whether that averment is accurate is a different question. For the moment I am satisfied that fn. 18 fits where it is, and that the hypothesized deleted text never existed in the first place.
# posted by Anonymous : 3:33 PM
