"I want to hear about the least plausible constitutional arguments that have ever been made."

Writes Orin Kerr. He's looking for the "weirdest, strangest constitutional arguments," saying "I’m sure most of them will be arguments that trial courts readily rejected, or even never bothered to analyze it on the merits."

I'd be more interested in the weirdest, strangest constitutional arguments that courts have accepted. It's harder to see them as weird when the authorities endorse them, and our whole concept of what is weird is affected by what we see respected figures accept. "I suspect that many of these claims will be made by pro se plaintiffs such as prisoners or tax protestors," says Kerr. Kooks will be kooks. Why assemble the ravings of madmen... unless the madmen are sitting on the courts?

Swartz "was deeply committed to civil disobedience and to the moral imperative of breaking unjust laws."

"On the other hand, he seems to have had his soul crushed by the prospect that he would spend time in jail. This is an unusual combination. Usually the decision to engage in civil disobedience comes along with a willingness to take the punishment that the law imposes. But despite Swartz’s apparent interest in legal questions, he seems to have made his decision with a blind spot to the penalties that would actually follow. It’s a strange situation: Swartz was really interested in the law, and he knew he was violating the law. He knew a lot of lawyers who would have told him that this would likely happen if he went ahead with his plan. But there was some apparent blind spot that led him to act anyway."

Why not eliminate faculty meetings — or most of them — and conduct business via email?

Lawprof  Jacqueline Lipton asks. The first comment nails the reason:

Isn't there some concern about having a paper trail?... I assume live faculty meetings can help maintain confidentiality better than sending emails on a controversial topic....

Even on noncontroversial topics, most lawprofs don't want the risk and pressure of putting it in writing. A few reckless graphomaniacs would dominate the discussion. Squelched passive aggressives may take revenge. 

At my law school [Orin Kerr comments] an "all faculty" e-mail exchange was recently forwarded to and published by Above the Law. That was suboptimal.

Of course, he just put that in writing, and whatever was up at Above the Law is still there to be searched for. Was it this? ("You mistake me for someone who is actually intimidated by you Dick...")

Someone on the conservative side of the Supreme Court "wants us to know that they’re pissed off, and they want us to know why."

Orin Kerr deduces.

But why were they so pissed that they immediately leaked? You'd think these characters would have more self-control. I'd like to suggest that it was controlled. These smart guys think fast. They made a cold calculation. There's an effect they seek — they had a political strategy — and it's simply most effective if it's put in motion at the point when everyone's involved in trying understand what happened. That's my speculation. The speculation that they are not hotheads. Which would require changing Kerr's first "know" — in the quote in my post title — to "think."

Here's what Kerr says:

If you leak to [journalist Jan] Crawford with the spin that Roberts’ decision was illegitimate, and then the mandate opponents pick up that theme and run with it, perhaps that view will gain some traction in the legal world and will help out another challenge in the future. Or perhaps there’s a smoking gun that explains what Roberts was thinking that hasn’t been made public yet. Or perhaps the health care cases just made people act strangely. It’s hard to know.

Are Justices "people"? They live in such a ridiculous environment that it's hard to know what counts as strange. It's a strange way of life.

(And yet we trust them! Presumably, we trust them because they're following some process we regard as legal, even though we don't really believe they do, and we're reduced to complaining about how they don't or positing theories that legitimate something else that we think they might do but that we can't articulate in a form that actual people — people people — can swallow.)

The Top 10 Things That Just Had to Wait Until the Last 24-Hours Before the Obamacare Decision.

No, no, no. It's not just filler. It's the last amazing thing that was finally realized, on the Eve of Destruction — or Non-Destruction or Semi-Destruction — and needed to be published right now — quick! link! read! — for the edification of the American people.

1. Scalia is a rascal. I insist that he resign! Pronto! He's been annoying Elmer J. Dionne Jr. for years. Oooh, I'm just so mad. How dare he!

2. The NYT still has Linda Greenhouse available to wheel out for special occasions. Today will probably be a "rare day" of "theater." There might be "tears of relief" or "of regret." But "whose"?

3. President Obama will need to respond to the ruling. Will it be with tears? Of relief? Or of regret? He's got 3 speeches ready. Tears of relief... tears of regret... and laughing through tears.

4. "In the end, you have to make a prediction and take responsibility for it. I believe the mandate will not be invalidated tomorrow." As The Beatles sang: And in the end, the predictions you make are equal to the responsibility you take. Aaaah aaaah....

5. "We don't know what will happen this morning. But no matter what, today is an important day to have Barack Obama's back." Email just now from the Obama campaign. Because everything is an occasion for giving money to Obama. Especially this. Transmogrify your tears of regret — or relief! — into cash for Obama.

6. A roundup — like mine right here — of all the predictable bullshit: "Obamacarians' Pregame Rationalizations: Doesn't Matter; Good for O; All Scalia's Fault, and More!"

7. Instapundit provides a roundup of last-minute links including the roundup of links that I just linked to at #6 (which I took, not from Instapundit, but from that one guy in the comments here).

8. Randy Barnett thanks everyone — whatever happens — he's happy to have at least been taken seriously. Especially by Orin Kerr, who really annoyed him.

9. What do I actually think? Should I after all this time reveal whether I think the individual mandate is constitutional? We're about to hear what the Supreme Court thinks, so what does it matter what I think? It's emphatically the province and duty of the Judicial Department to say what the law is. That's what I think. Now, if they go 5-4, liberal-conservative or conservative liberal, The Law will not have the awesome solidity We, The Children want it to have, but I'm not going to cry about it. I'm old. And I've been watching the Supreme Court for a long, long time. It's 9 human beings — could be 19, but it's 9 — trying to do something serious and complicated.

10. Oh! It's so exciting! Let's watch it unroll at the SCOTUSblog live blog, where the venerable  Lyle Denniston is saying "Good morning from a slightly zoo-like, but still surprisingly civil, press room at the Court."

Is it possible to do good "back-end moderation" of comments on a high-traffic blog?

At Volokh Conspiracy, Orin Kerr goes on at some length on the subject but ends up saying, in a word: no.

My blog gets about the same amount of traffic as his. (A little more, actually, lately.) And with Meade's help, my blog now goes with "back-end moderation," as discussed here. It was hard to get around the realization that this is the best approach and that it can actually be done. It does involve paying a lot of attention, applying judgment, and remembering who's said what and what you've done about it in the past. This is a behind-the-scenes role, and maybe it's too Meade-specific for other bloggers to use. But it's working for me.

"Should Faking a Name on Facebook Be a Felony?"

Orin Kerr asks:

The little-known law at issue is called the Computer Fraud and Abuse Act. It was enacted in 1986 to punish computer hacking. But Congress has broadened the law every few years, and today it extends far beyond hacking. The law now criminalizes computer use that "exceeds authorized access" to any computer. Today that violation is a misdemeanor, but the Senate Judiciary Committee is set to meet this morning to vote on making it a felony.

The problem is that a lot of routine computer use can exceed "authorized access." Courts are still struggling to interpret this language. But the Justice Department believes that it applies incredibly broadly to include "terms of use" violations and breaches of workplace computer-use policies.

I was a victim of that crime back in 2007, and I got mocked for even objecting to the behavior, as though I was repressive and humorless. ("You know, I realize you're going on 70 or whatever, but seriously, you act like you're still in high school, being picked on.") I never said I wanted the government to prosecute the person who impersonated me on Facebook in violation of Facebook's Terms of Use. I just wanted Facebook to delete the imposter's account... which it did.

Anyway, there are a lot of complicated issues here. As Kerr observes, way too many things are swept into this vague law, and the effects have been limited because federal prosecutors tend not to charge misdemeanors. There is, however, some core behavior that ought to be prosecuted as a felony, and Congress ought to specify what it is and not simply trust prosecutors — incentivized by the new felony status of internet misbehavior — to select appropriate targets.

About that 4th amendment...

1. There's the new Supreme Court case, Kentucky v. King, described here by Orin Kerr, who thinks Justice Alito "did a pretty sharp job":

In this case, officers entered an apartment without a warrant after smelling marijuana inside, knocking, and hearing noises inside. The Kentucky Supreme Court had assumed that the police had exigent circumstances in those facts, but then concluded that the police had created the exiegncy [sic] — and therefore could not rely on it to make a warrantless entry — by in effect inducing King inside to react to the police outside and react in a way that created the exigency. In its opinion today, the Supreme Court disagreed...

2. There's what the Indiana Supreme Court said in Barnes v. State, and, again I'm relying on the wonder that is Orin Kerr:

In this case, the officer had come to the home in response to a domestic violence call.... The officers asked if they could enter the home, and the defendant’s wife pleaded with the defendant to let them enter. The defendant refused. The police then entered anyway, and the defendant “shoved [an officer] against the wall.” The officers then tazed the defendant and arrested him.

The defendant was charged with misdemeanor battery against a police officer, among other things. At trial, he wanted to argue to the jury that it was lawful to shove the officer because he had a citizen’s right to reasonably resist unlawful entry into his home. 

The court said there was no such right, noting "a right to resist an unlawful police entry into a home is against public policy and is incompatible with modern Fourth Amendment jurisprudence."

I'm not ready to take a position on either of these cases, but I wanted to put them up for discussion. I'm about to record a Bloggingheads episode, and we may talk about these, but, then again, maybe not.

"[I]t remains possible that Uthman was... kind of Forrest Gump in the war against al Qaeda."

Orin Kerr is "generally skeptical of movie and pop culture references in judicial opinions," but he likes that one.

"I closed the comment thread, as it featured the same commenters making the same comments that they have each made several dozen times before."

Orin Kerr kicks comment ass.

(And also explains the Necessary and Proper Clause in connection with the new health care law case.)

"Adam Liptak has a somewhat puzzling critique of Supreme Court opinions in the New York Times..."

Says Orin Kerr, taking it all very seriously.

Hey, I want to be in this book!

I was raised by Delaware!

"It was just a pro se prisoner petition in a big stack of IFPs that normally would be short-formed with a quick 'Splitless, factbound, I recommend DENY.'"

Orin Kerr puzzles over Justice Sotomayor's "rather remarkable dissent from denial of certiorari in Pitre v. Cain, a pro se Eighth Amendment case brought by a prison inmate whose case was dismissed as “patently frivolous” by the trial court and affirmed by the Fifth Circuit in a short one-paragraph order.

The opinion begins:

Petitioner Anthony Pitre, a Louisiana state prisoner, stopped taking his HIV medication to protest his transfer to a prison facility. He alleges that respondents at the facility punished him for this decision by subjecting him to hard labor in 100-degree heat. According to Pitre, respondents repeatedly denied his requests for lighter duty more appropriate to his medical condition, even after prison officials twice thought his condition sufficiently serious to rush him to an emergency room.

This is the empathy we heard about, is it not?

The Magistrate Judge concluded that Pitre had been “‘hoist by his own petard’”...

And that's not empathy.

"Ten Most Cited Female Faculty 2005-2009."

A special list, because the "Ten Most Cited Faculty 2005-2009" is 100% male.

(Via Orin Kerr.)

"A federal judge ruled Wednesday that the National Security Agency’s program of surveillance without warrants was illegal"... except he didn't.

Orin Kerr catches the NYT's misreading of Al-Haramain Islamic Foundation v. Obama.

"See, for example, the words of former Governor Sarah Palin of Alaska: 'If [the Pledge] was good enough for the founding fathers, its [sic] good enough for me....'"

Those words appear in Palin's Gubernatorial Candidate Questionnaire, Eagle Forum Alaska, July 31, 2006. In his dissenting opinion in the new 9th Circuit case upholding the constitutionality of the Pledge of Allegiance, Judge Reinhardt cited Palin's words in a footnote in support of the proposition that "some individuals" don't know their history:

For many Americans, the current version of the Pledge is the only version they have ever known. Some individuals not familiar with our political history may even be under the impression that its language dates back to the founding fathers.

Orin Kerr sees the hand of a smartass clerk:

I think it’s notable when a federal court of appeals judge with a well-established political view picks up a meme from political blogs and pokes fun at a politician on the other side in a pretty gratuitous way. It also screams “law clerk idea.” If you don’t think that’s notable, then I suppose we’ll just have to disagree.

A Kerr commenters defends Palin. DrGrishka says:

Reinhardt’s citation is misleading. The question to which Sarah Palin responded read:

11. Are you offended by the phrase “Under God” in the Pledge of Allegiance? Why or why not?

The answer was

Not on your life. If it was good enough for the founding fathers, its good enough for me and I’ll fight in defense of our Pledge of Allegiance

It could be that she gave a stupid answer in which the “it” referred to the Pledge itself. That would be historically inaccurate. But the “it” could have just as easily referred to the phrase “under G-d.” If so, the answer would be completely plausible as founding fathers used such phrases all the time.

And Palin's task at hand was to be an effective political candidate, and that is not about parsing the question and saying the most technically correct thing. People who assume they are smarter than Palin need to perceive the contextual dimension of intelligence. Are you smart at doing the thing you are currently trying to do or smart in the abstract? Because life is not in the abstract, and the people who are smartest in the abstract are not the ones who win political power. Reinhardt/his law clerk was overconfident, perhaps, in his own intelligence and failed to pay attention to the context in which he was operating, a judicial opinion. Fortunately, the political process is pretty good at filtering out individuals afflicted with this form of stupidity. But if they have life tenure, as judges do, we are stuck with it. And yet, Reinhardt needed votes too, and here we see he is writing in dissent, having lost.

Another commenter, footnoter, says:

What a sad reflection on Reinhardt. When a judge gets to doing this, it’s past time to hang up the spurs.

On the topic of a 133-page dissent with its own table of contents, on a rather simple issue, I’m reminded of EZ Rider’s dictum: “simple arguments are winning arguments; convoluted arguments are sleeping pills on paper. . . . when judges see a lot of words they immediately think: LOSER, LOSER. You might as well write it in big bold letters on the cover of your brief”

[I]magine if Judge Bybee or Justice Scalia said “we have 50 states– a fact unknown to some Americans in power” with a footnote saying “see, e.g., President Obama’s remarks he had visited ’57 states.’”

What if the other side had done the equivalent? That question pops up so often these days.

"If a federal budget that is 25% of GDP is too low, what is about right?"

A big "if."

Imagine "Reverse Yoo."

Orin Kerr poses a hypo in which John Yoo is asked to interpret a federal statute that fairly appears to permit enhanced interrogation techniques like waterboarding. The Reverse Yoo believes, personally, that these techniques really are torture and should be forbidden:

[Reverse Yoo] is not going to be like the Nazi lawyers who let the Holocaust occur... So Yoo decides that he must write a memo concluding that these techniques are unlawful.  Granted, he needs to get a bit creative to reach that result.   He needs to stretch a legal term here, bend a legal term there.  But by fudging the analysis when necessary, he manages to write a memo that gets to the result he wants to reach that the CIA is not permitted by law to engage in these interrogation methods.   With OLC’s opinion issued, the CIA never uses these techniques and no one is ever waterboarded.

Now, did the real John Yoo do basically the same thing as the Reverse Yoo? Or is the bending and stretching justified to prevent torture but not to permit it? Does it all depend on whether you think enhanced interrogation techniques are torture?

Orin Kerr thinks the 9th Circuit has made "every computer search warrant that has ever been obtained — and every offsite search" unconstitutional.

"Am I right that the Ninth Circuit's Fourth Amendment decision in United States v. Comprehensive Drug Testing has rendered every computer search warrant that has ever been obtained — and every offsite search — unconstitutional? I've been working in this area for over a decade, and I have never heard of a case that satisfies the Ninth Circuit's new procedural standards."

"Many blogs have developed successful communities of commenters, with many very interesting and substantive contributions and discussions."

"Unfortunately, this has not happened here."

Lawprof Jack Balkin nixes comments. Though his co-bloggers can still turn comments on for their individual posts, he's had it with trolls and name-calling:

There is very rarely any serious analysis; mostly there is point scoring and vitriol. Many regular readers have written to say that they find the comments section a distraction and think the blog would be far better without it.

Daniel Solove, who likes his own commenters, says:

It seems to me that different blog commenting cultures arise on different blogs. I bet that the readership for Balkinization and Concurring Opinions overlaps quite a bit, yet I have noticed that the comments at Balkinization are much as Jack describes them. Why have commenting cultures developed so differently at different blogs? I don't really know the answer, and it would be interesting to figure out why commenting cultures develop in the ways that they do.

One question I'd ask is: Do you go into the comments yourself and talk with your readers or do you just look on and hope for the best and fret and contemplate total destruction when things go to hell?

Orin Kerr says:

I suspect the explanation rests largely on the different moderation practices at different blogs. If a blogger doesn't moderate comment threads at all on a widely read blog, people who want to be shocking, mean, or just irrelevant realize they can do their thing and reach a decent-sized audience....

Over time, comment moderation practices end up having a profound impact on who comments, and different approaches either attract thoughtful commenters or keep them away.

A little too much stress on commenters behaving themselves? I think I have a taste for more wildness than these other law professors. I want something exciting to happen in the comments. To me, a troll is someone who's boring, verbose, and repetitive. There's no end to how creative readers might be if you give them a place to write. You need to care about seeing that happen.

IN THE COMMENTS: Henry Buck says:

He's complaining about point-scoring and vitriol in the comments of a blog that takes its name from a play on a word for diviseness and nationalistic hatred?

Ha ha. Yeah, he's long had that slogan: "Balkinization: an unanticipated consequence of Jack M. Balkin." Which made it sound like we don't expect it and he loves it and is going to going to serve it up for our pleasure.