Man lives in a 78-square-foot space.

He's an architect in his 20s, living — roommate free! — in New York City.  Based on the street scene, he's right about here. He seems reasonably satisfied with it, as he describes minimalist impulses going back to childhood. There's room for a bed/sofa and a desk. My only outburst, watching that video, was "does he have WiFi?"

Picture a prison cell that size. Would it be too cruel? But inject the freedom to walk out the door at any time and have all of NYC. It's not cruel at all. When you're sleeping in your bed, the space around you doesn't really matter, and when you're sitting at that desk, it's not too different from a carrel in the library.

Barack Obama has not flip-flopped or betrayed his lefty fans. You need to understand: He's a "visionary minimalist."

Cass R. Sunstein offers up a useful term — so that everyone can always understand everything about Barack Obama:

Of course Obama is a progressive.... But, by nature, he is also an independent thinker, and he listens to all sides. One of his most distinctive features is that he is a minimalist, not in the sense that he always favors small steps (he doesn't), but because he prefers solutions that can be accepted by people with a wide variety of theoretical inclinations.

When he offers visionary approaches, he does so as a visionary minimalist -- that is, as someone who attempts to accommodate, rather than to repudiate, the defining beliefs of most Americans. His reluctance to challenge people's deepest commitments might turn out to be what makes ambitious plans possible--notwithstanding the hopes of the far left and the cartoons of the far right.

He is infinitely complex, people. It's you that need to get up to speed. Readjust. Visionary minimalism makes everything right.

And, no, it's not a new round of triangulation. Don't pin that on the new man:

Just as he resists ideological templates, Obama does not believe in "triangulation"; his skepticism about conventional ideological categories is principled, not strategic.

(Did that hurt, Bill?)

Obama does not follow old-line political orthodoxies. Above all, Obama's form of pragmatism is heavily empirical; he wants to know what will work.

That can't be wrong.

[I]n his empiricism, his curiosity, his insistence on nuance, and his lack of dogmatism, Obama is indeed a sort of anti-Bush--and perhaps the best kind. If the Bush administration has often operated on the basis of the president's "instinct," we should expect to see, from Obama, a rigorously evidence-based government....

The larger point is that Obama's departures from left-wing orthodoxy should not be understood as a betrayal of his own beliefs, or as a kind of "tacking to the center." Instead, they reflect something altogether different: an independence of mind, and a rejection of doctrinal filters, that we do not often see in candidates for public office.

If I could know that's all true, I would vote for Obama. But it could just as well be a guise, a cover, to get me to fall for something I'm not going to want at all. After you do all that listening and evidence-collecting and cogitating, you still have to make the call. It can't be pure science. The instincts will tip the answers one way or the other. But Cass Sunstein insists that there's a rejection of doctrinal filters. I don't know that it is possible to think without something like a "doctrinal filter." But maybe it's possible that Obama does -- or at least comes closer to unfiltered thinking than anyone else is likely to do.

ADDED: This isn't the first time Sunstein has expatiated on Obama's "visionary minimalism" in TNR. Here's his piece from last January.

"And whatever happened to the 'Kennedy Court'?"

Asks Linda Greenhouse, in a survey of the Roberts years on the Supreme Court that notes the decline of 5-4 decisions. There's only been 1 this year (and it was a "low-profile" statutory case where Justice Kennedy, in dissent, was not the deciding vote). Last year a third of the cases were decided 5-4. What's going on? It may be that the more contentious cases will come in the last days of the term. Greenhouse notes that Justice Stevens has voted with the conservative Justices in a few key cases:

It would be too simplistic an explanation to say that the liberal justices, at least some of them, have simply given up. Something deeper seems to be at work. Each of those three cases might have received a harder-edged, more conclusively conservative treatment at the hands of the same five-member majority that controlled the last term.

Instead, the lethal injection and voter ID decisions hewed closely to the facts of each case. Kentucky’s lethal injection protocol passed muster, but the court left open the possibility that another state’s practice might not. The voter ID challenge reached the court on a nonexistent record, so perhaps a stronger case could be made at a later time. Justice Antonin Scalia’s majority opinion in the child pornography case construed the statute so narrowly as to allay the First Amendment concerns of Justices Stevens and Breyer and win their full concurrence.

So perhaps there was a bit of movement on both sides — not simple liberal capitulation, but liberals using their limited leverage to exact some modest concessions as the price of helping the conservatives avoid another parade of 5-to-4 decisions.

Or is it the Chief Justice playing a moderating role and following through on the ideas about minimalist decisions that he expressed at his confirmation hearings?

Recall the pledge that Chief Justice John G. Roberts Jr. made, both in his 2005 confirmation hearing and in the early months of his tenure, to seek consensus and to lead the court in speaking in a modest judicial voice....

The court’s modulated tone may also stem from the fact that this is an election year....

It's interesting that this line is well-separated from the discussion of Justice Stevens behavior. Is he perhaps hoping for a President who will appoint a liberal Justice or 2? It would not help that agenda to display the spectacle of 4 liberal Justices eager to change everything if only they could get one more vote.

Who's to say what these big patterns mean as cases are decided individually, by judges forming opinions mostly on their own? But Greenhouse's observations sharpen our view as we look to see the torrent of cases in the upcoming days. (And how strange it will be when we won't have Greenhouse to sharpen the picture for us anymore!)

ADDED: Jonathan Adler objects to the Greenhouse analysis.

"The Tobacco Monologues."

The new Minnesota smoking ban has an exception for actors in theatrical performances, but who is an actor and what is a theatrical performance? Aren't we all really actors in some sense, and when you go to a bar, are you not playing some sort of role? Minnesotans are working the loophole and, along the way, saying something about the line between life and art.

At The Rock [a hard-rock and heavy-metal bar in suburban St. Paul] earlier this week, a black stage curtain covered part of the entrance, and a sign next to it with an arrow read, "Stage Entrance." Along the opposite wall, below a sign saying "Props Dept.," was a stack of the only props needed: black ashtrays.

At the door was a printed playbill for that night's program, with a list of names of the people portraying bartenders and security guards. Playing the owner: "Brian."

Courtney Conk paid $1 for a button that said "Act Now" and pinned it to her shirt. That made her an actor for the night, entitling her to smoke. She turned in an understated, minimalist performance, sitting with cigarette in hand and talking to a bass player with the band....

At Barnacles Resort and Campground along Lake Mille Lacs, a "traveling tobacco troupe" dressed in medieval costume on the first theater night. Mark Benjamin, a lawyer who pushed bars to exploit the loophole, wore tights, a feathered cap and black boots.

"Hey, I'm a child of the '60s. I can do a little improv," he said. His improv amounted to speaking in medieval character to other patrons....

One bar on northern Minnesota's Iron Range, the Queen City Sports Place, calls its nightly smokefest "The Tobacco Monologues."

Scalia mocks minimalism.

Linda Greenhouse shows where Justice Scalia has recently expressed his antagonism toward the more moderate style of the Chief Justice.

In the issue ads case (Wisconsin Right to Life): "This faux judicial restraint is judicial obfuscation."

In Freedom From Religion, the case that restricted standing to use the Establishment Clause to challenge Executive Branch decisions: "Minimalism is an admirable judicial trait, but not when it comes at the cost of meaningless and disingenuous distinctions."

But the liberal lawprofs consulted by Greenhouse don't seem too impressed by what she wants to portray as a rift among conservatives:

As Prof. Jack M. Balkin of Yale Law School wrote on his blog, Balkinization, “It is the difference between bomb throwing and dismantling.”

... Prof. Erwin Chemerinsky of Duke Law School observed that Chief Justice Roberts, who has taken the conservative position in every ideologically divided case this term, could hardly be described as less conservative than Justice Scalia.

Prof. Mark Tushnet of Harvard Law School, whose recent book, “A Court Divided,” explored the differences among Republican-appointed members of the Rehnquist court, said that “a consolidated conservative majority, not a divided conservative majority,” was now in charge.

I tend to agree with this. Roberts (with Alito) and Scalia (with Thomas) are not at cross purposes. How shocking it would have been if the Court in those two cases gone ahead with the overruling that Scalia recommended. What a gift it would have been to the Democratic presidential candidates, who would have impressive new substance for scaring people about what another Republican President would do to the Court.

"Bong Hits 4 Jesus" -- the teacher wins, the student loses.

I'm only reading the outcome over on SCOTUSblog:

The fourth ruling, written by Chief Justice John G. Roberts, Jr., over three full dissents and one partial dissent, declared that public school officials do not violate a student's free speech rights by punishing the student for words or actions that promote a drug message.

Here's my post written after the oral argument. I sympathized with the student and thought that the Court should acknowledge that his rights were violated, but thought the teacher should win on qualified immunity grounds, given the unclarity of the law:

But the Court can also say that this wasn't yet clear, which would save the principal from having to pay damages. It would, however, set the stage for the next suit for damages, as the Court can use this case to make the law clear. And it should.

I'm waiting to see the opinion, but if SCOTUSblog is correct, the Court simply rejected the student's claim that he had a free speech right here.

ADDED: Here's the opinion. Chief Justice Roberts is joined by Scalia, Kennedy, Thomas, and Alito, and we've got concurring opinions from Thomas (alone) and Alito (joined by Kennedy). Breyer (alone) has a mixed opinion about it (concurring in the judgment in part and dissenting in part). And Stevens dissents, joined by Souter [ADDED: and Ginsburg].

A big dispute between the majority and the dissent is whether "Bong Hits 4 Jesus" is a pro-drug message or just ridiculous nonsense. And which way does that cut? Is the student in a better position if we see it as a pro-drug message -- as the majority does -- because then it's political speech and entitled to more protection? No, according to the majority:

The danger here is ... serious and palpable. The particular concern to prevent student drug abuse at issue here, embodied in established school policy, extends well beyond an abstract desire to avoid controversy.

Justice Stevens chides the majority for putting low value on free speech in this case and doing the opposite in today's other free speech case, Wisconsin Right to Life. Roberts answers in a footnote: "there is no serious argument that Frederick’s banner is political speech of the sort at issue in Wisconsin Right to Life."

Justice Breyer comes closest to adopting the position I recommended. He would simply say that the teacher has qualified immunity. Unlike me, he would not also use the case to clarify the law. There is a very important issue of judicial restraint here, one that Breyer has written about before. There is a case -- Saucier v. Katz, 533 U. S. 194, 201–202 (2001) -- that says that courts ought to decide first if a right was violated and then determine whether it was clear enough at the time so that the government official should be deprived of qualified immunity. This order of decisionmaking violates the precept that courts should avoid unnecessary questions of constitutional law. Moreover, the Court missed an opportunity to reach consensus (and to proceed by minimalism):

In resolving the underlying constitutional question, we produce several differing opinions. It is utterly unnecessary to do so. Were we to decide this case on the ground of qualified immunity, our decision would be unanimous, for the dissent concedes that Morse should not be held liable in damages for confiscating Frederick’s banner. Post, at 1 (opinion of Stevens, J.). And the “cardinal principle of judicial restraint” is that “if it is not necessary to decide more, it is necessary not to decide more.” PDK Labs., Inc. v. Drug Enforcement Admin., 362 F. 3d 786, 799 (CADC 2004) (Roberts, J., concurring in part and concurring in judgment).

This is an appealing argument, but it has a troublesome downside. If the courts keep avoiding making the law clear, defendants continue to prevail on immunity grounds. This could mean that there are rights that we never get to learn about and that government officials are able to continue to violate with impunity.

Justice Thomas practices originalism, and that has him looking back on old school traditions:

[I]n the earliest public schools, teachers taught, and students listened. Teachers commanded, and students obeyed. Teachers did not rely solely on the power of ideas to persuade; they relied on discipline to maintain order.

And no one was unfurling wacky, druggy banners.

Reviewing the school speech cases, he concludes:

I am afraid that our jurisprudence now says that students have a right to speak in schools except when they don’t—a standard continuously developed through litigation against local schools and their administrators. In my view, petitioners could prevail for a much simpler reason: As originally understood, the Constitution does not afford students a right to free speech in public schools.

He's ready to erase the precedent that began with Tinker (the case about students wearing black armbands to protest the war in Vietnam):

Tinker has undermined the traditional authority of teachers to maintain order in public schools. “Once a society that generally respected the authority of teachers, deferred to their judgment, and trusted them to act in the best interest of school children, we now accept defiance, disrespect, and disorder as daily occurrences in many of our public schools.” Dupre, Should Students Have Constitutional Rights? Keeping Order in the Public Schools, 65 Geo. Wash. L. Rev. 49, 50 (1996). We need look no further than this case for an example: Frederick asserts a constitutional right to utter at a school event what is either “[g]ibberish,” ante, at 7, or an open call to use illegal drugs. To elevate such impertinence to the status of constitutional protection would be farcical and would indeed be to “surrender control of the American public school system to public school students.” Tinker, supra, at 526 (Black, J., dissenting).

My, that's bracing. I'm a teacher. And I must confess that gave me a frisson. A perverse frisson?

But let's finally get around to reading what Justice Alito has to say. Joined by Justice Kennedy, this opinion represents the decisive fourth and fifth votes:

I join the opinion of the Court on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as “the wisdom of the war on drugs or of legalizing marijuana for medicinal use.” See post, at 13 (Stevens, J., dissenting)....

The public schools are invaluable and beneficent institutions, but they are, after all, organs of the State. When public school authorities regulate student speech, they act as agents of the State; they do not stand in the shoes of the students’ parents. It is a dangerous fiction to pretend that parents simply delegate their authority — including their authority to determine what their children may say and hear — to public school authorities. It is even more dangerous to assume that such a delegation of authority somehow strips public school authorities of their status as agents of the State. Most parents, realistically, have no choice but to send their children to a public school and little ability to influence what occurs in the school. It is therefore wrong to treat public school officials, for purposes relevant to the First Amendment , as if they were private, nongovernmental actors standing in loco parentis....

In most settings, the First Amendment strongly limits the government’s ability to suppress speech on the ground that it presents a threat of violence. See Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam). But due to the special features of the school environment, school officials must have greater authority to intervene before speech leads to violence. And, in most cases, Tinker’s “substantial disruption” standard permits school officials to step in before actual violence erupts. See 393 U. S., at 508–509.

Speech advocating illegal drug use poses a threat to student safety that is just as serious, if not always as immediately obvious. As we have recognized in the past and as the opinion of the Court today details, illegal drug use presents a grave and in many ways unique threat to the physical safety of students. I therefore conclude that the public schools may ban speech advocating illegal drug use. But I regard such regulation as standing at the far reaches of what the First Amendment permits. I join the opinion of the Court with the understanding that the opinion does not endorse any further extension.

So don't forget that the school is the state and children (and their parents) are pretty much compelled into submission. Ordinary, this would move us to respect your freedom of speech up to the point of "substantial disruption." But drugs are different. They're very, very dangerous. So the school can ban speech advocating their use -- that is, their illegal use. If you want to say it is bad that drugs are illegal... well, then that's different. And this case isn't saying anything about that.

ADDED: I'm correcting what was a garbled second to the last sentence. (I'd written "If you want to say something bad it is that drugs are illegal..." instead of "If you want to say it is bad that drugs are illegal...") I apologize for the confusion.

This blog is 3 years old today.

Here's what I said 2 years ago:

One year old!

The day has finally come. This blog is one year old today. It's been pretty cool. I remember starting off in utter obscurity, thinking I'd better take care what I write, because I've got to assume that, eventually, some people who know me are going to find this. And now the Sitemeter is up over 900,000. Thanks to all the readers for coming by!

One year ago... minimalism was in:

Two years old today...

This blog is.

Going all the way back to the beginning, January 14, 2004, to the first post, at 10:36 a.m.:

This blog is called Marginalia, because I'm writing from Madison, Wisconsin, and Marginalia is a fictionalized name for Madison that I thought up a long time ago when I seriously believed I would write a fictionalized account of my life in Madison, Wisconsin. There is nothing terribly marginal about Madison, really, but I do like writing in the margins of books, something I once caused a librarian to gasp by saying. Writing in a blog is both less and more permanent than writing in the margin of a book.

But I'm still here somehow, still checking in daily from my remote outpost in Marginalia.

Chief Justice Roberts -- he's telegenic.

And he's helping the home viewer tolerate the power of the judiciary... says Dahlia Lithwick:

Unlike Justice David Souter, who loathes the cameras to the point of some kind of pathology, Roberts embraces the lens, which adores him right back. Unlike Justice Clarence Thomas, whose view of all media is—perhaps understandably — constrained by an us/them isolationism, and unlike Justice Antonin Scalia, whose prickly contempt for the media keeps crashing head-on with his desire to have a voice in the broader national conversation about the law, only the chief understands the whole honey/vinegar problem.

Individual politics and ideology notwithstanding, what's most important about this unprecedented new era of the Talk Show Jurist is just this: As Americans begin to see their justices as real people with real concerns and real dandruff, their fear of an isolated, elitist, and out-of-touch judiciary begins to recede. We may not all be completely sold on Roberts' idea of minimalism or on O'Connor's opposition to judicial oversight. But we are at least beginning to see our justices taking their case to the American people and grappling to justify their own role in this democracy. Trivial as it may sound, it's awfully nice to know that they care enough to finally talk to us.

Despite the seeming perfection of John Roberts, we need to know how to resist the telegenic personality. You can be good on TV and still make bad decisions and bad on TV -- or completely TV-averse -- and be a great judge. Surely some great judges are ugly and gruff or unable to string words together in crisp TV-sized bites. And some judges who would overreach and abuse their power can look good and sound nice and friendly on the tube.

But I do agree with Lithwick that it's good for the judges to talk to us and to help people understand the judicial role. What the judges say when they go on TV is -- to my ear -- an astoundingly basic and repetitive civics lesson, but based on my own experience, it is a lesson people find strangely difficult to absorb.

"The proceedings seemed more like a medical school seminar than an appellate argument."

Linda Greenhouse describes yesterday's oral argument in the abortion case.

What exactly was the procedure that the law, the Partial-Birth Abortion Ban Act of 2003, sought to prohibit, the justices wanted to know. When, if ever, was the procedure necessary? What would be the impact of banning it? What alternatives were available to women seeking second-trimester abortions and to doctors performing them?...

Justice Kennedy’s questioning suggested that he had not made up his mind, despite his strongly worded dissenting opinion when the court struck down Nebraska’s version of the federal law six years ago, and despite his obvious distaste for the procedure at issue. Instead, his questions suggested that he remained open to persuasion that the law placed doctors in legal jeopardy and imposed an unconstitutional burden on their patients’ right to terminate their pregnancies.

One example was his response to the assertion by Solicitor General Paul D. Clement that it was never necessary for doctors to use the banned procedure because a more common procedure, one not covered by the statute, “has been well tested and works every single time as a way to terminate the pregnancy.”

Justice Kennedy responded: “Well, but there is a risk if the uterine wall is compromised by cancer or some forms of pre-eclampsia and it’s very thin. There’s a risk of being punctured.”

Since Justice O'Connor was the fifth vote in the previous "partial-birth" abortion case, we're especially interested in any cues that might have come from Justice Alito, but he said nothing at all. Scalia was "unusually disengaged." Chief Justice Roberts was active:

At times, he appeared to be trying to bolster the defense of the statute by the solicitor general. At other times, the chief justice appeared eager to find differences between the federal law and the Nebraska law. Differences in the way the state and federal laws defined the procedure could be the basis for a decision that upholds the federal law without disavowing a recent precedent.

That sounds as though Roberts was looking for a minimalist theory for upholding the federal law, while perhaps Kennedy was looking for a minimalist way to provide the fifth vote for striking it down.

What Kennedy does is important, and I think the Democrats acquisition of control of the Senate makes it easier for him to assume the position previously occupied by Justice O'Connor and vote against the law. There will be outcry against Kennedy, but those who are opposed to abortion rights can no longer hope for new openings on the Court to fill with solid conservatives. With the new Senate, any new Justices are going to be judges who operate much like O'Connor and Kennedy.

"We’re going to be in a kind of bog of mixtures of constitutional law, unclear Oregon state law... et cetera."

Justice Breyer fretted yesterday in the course of the oral argument in a case about the constitutional restrictions on punitive damages. The Oregon Supreme Court accepted $79.5 million awarded to one person, the widow of a man who smoked a lot of Marlboros and died of lung cancer. Her compensatory damages were only $871,000. Philip Morris argued that the court has essentially allowed one plaintiff's case to become “a one-way class action in which Philip Morris was exposed to global punishment by the jury without any of the protections of a class action.” But is that what the Oregon court did?

Finding the Oregon Supreme Court’s opinion insufficiently clear on this basic point, the justices would be unable to use the case as a vehicle for taking their consideration of punitive damages to the next level.

"What’s worrying me... is that we’re going to be in a kind of bog of mixtures of constitutional law, unclear Oregon state law, not certain exactly what was meant by whom in the context of the trial, et cetera."

And Justice David H. Souter, referring to the Oregon Supreme Court, asked Mr. Peck: “Isn’t perhaps the better course to send this back to them and say, ‘We don’t know what you mean?’ And let them tell us clearly.”...

“You don’t think that would confuse the jury if they are first told that they may consider the extent of harm suffered by others, and then the next instruction seems to say they can’t?” Justice Ginsburg asked Mr. Frey.

“The concept may be abstract,” Mr. Frey replied, insisting that there was a “difference between considering and punishing” that a proper jury instruction would have made “quite clear to the jury.”

So, it seems, this case could fizzle. But it has the potential to quite significant.

The United States Supreme Court has been deeply split on the punitive damages question, with three justices, Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg, rejecting the idea that the Constitution’s guarantee of due process places a limit on what states can permit juries to award.

With the departure of William H. Rehnquist, the former chief justice, and Justice Sandra Day O’Connor, both of whom supported due process limits on punitive damages, the known margin of support for the court’s precedents fell to 4 to 3, with the views of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. unknown.

ADDED: Dahlia Lithwick looks at the argument. Nugget:

Robert Peck represents Mayola Williams, and he achieves the distinction of eliciting the following admission from Chief Justice John Roberts: "I thought our cases clearly establish that you can consider the harm to others in assessing the reprehensible nature of the conduct." Roberts adds that the case law also prohibits punishment of the defendant for harms to others. In other words, he seems to be saying, the proposed instruction is confused because our precedent is confused. In which case, why not send it back for the Oregon Supreme Court to fix?

It's the Roberts Court's New Minimalism: We screw up the law, then ship it out to the lower courts to correct it.

Well, why not get the law straight now that you've gone to all the trouble to hear the case?

Some hipness and squareness about John Roberts.

Hey! I spot my name in today's NYT in an article by Linda Greenhouse called "His Hipness, John G. Roberts." Let's see:

WRITING in April for a unanimous Supreme Court, Chief Justice John G. Roberts Jr. found that the police in Brigham City, Utah, acted properly in entering a home without a warrant after they peered through a window and saw a fight in progress that had left one man spitting blood.

"The role of a police officer includes preventing violence and restoring order, not simply rendering first aid to casualties," the chief justice said, rejecting the argument that the police should have waited until the altercation ended more conclusively. "An officer is not like a boxing (or hockey) referee, poised to stop a bout only if it becomes too one-sided," he explained.

The chief justice's sports imagery galvanized the legal blogs. Some found his boxing reference inapt. "The whole point of boxing is fighting!" wrote a participant on the Althouse blog, run by Ann Althouse, a law professor at the University of Wisconsin.

Others took issue with the hockey reference. "Given all the padding that hockey players wear, being punched by an opponent hardly is more significant than being hit by a toddler," one said.

Finally, another writer took a step back and observed that "this shows another side of Roberts as a good writer: displaying some wry humor and hipness."

There is a hot link in that passage, but it's for "University of Wisconsin" and it just goes to a page of hits for a search within the NYT site for "University of Wisconsin." How about a link to the post? Come on, Times! You've got to do internet properly. It's not Greenhouse's fault, but really, that approach to links is unbelievably obtuse.

Here's the missing link. I started off the conversation this way:

We're familiar with the way a referee in a boxing can stop a fight if it becomes too one-sided. Why throw in "(or hockey)"? It not only clutters the sentence, it makes the concept harder to grasp. I don't even know about hockey referees stopping one-sided games. Since Roberts is known for the high quality of his writing style, I've got to think that parenthetical really adds something. But what?

Is it that in hockey fights break out, and the refs don't stop them unless they're one-sided, and it's actually more like the police situation because the fighting isn't legitimate in the first place, but some people might think the police should ignore fights unless someone is outmatched? In that case, hockey is a more apt analogy in light of the argument that the search was unreasonable.

The quote "The whole point of boxing is fighting!" is not mine. It's by what Greenhouse called "a participant on the Althouse blog, run by Ann Althouse." In other words, a commenter. Actually, it's Joan H. -- here's her blog .

She wrote:

Fighting is tolerated in the NHL, and referees often let the players involved work out their frustrations as long as neither party is getting beaten to a pulp and the other team members are staying out of the fray. Most fights are just scuffles, and are to be expected in a game in which shoving your opponents out of the way is legitimate.

I think the hockey analogy is better just for that reason, and can't understand why boxing was included at all. The whole point of boxing is the fighting! In hockey, fighting is always penalized, whether or not the refs break it up, just as it should be in life. I think Roberts included the boxing reference because frankly there aren't so many hockey fans around these days.

The second quote -- "Given all the padding that hockey players wear, being punched by an opponent hardly is more significant than being hit by a toddler" -- is by Dave Friedman. The "wry humor and hipness" one is from paulfrommpls. Here's his blog.

Greenhouse ends the opening passage to her article -- the part I've quoted -- with:

It is no surprise that the new chief justice's every vote is being tabulated and scrutinized. But so is his every metaphor.

Well, the attention to the metaphor is partly in the nature of blogging. It was a nice specific, textual thing to talk about. I love when something like that pops out in a Supreme Court case (or somewhere else in the news). It's one of those things that says bloggable to me. Indeed, I'm scrutinizing the writing in the NYT right now because it said bloggable to me... which it would have said even without calling my name (which gets my attention big time).

The NYT piece isn't about blogging phenomena, though. It's about judging John Roberts. The part about our little boxing/hockey conversation is followed by some quotes about Roberts' writing by usual suspect quotemeisters Erwin Chemerinsky (Roberts' "prose style is clear and easy to follow") and Akhil Amar (praising the "elegance and economy" and "occasionally snappy line"). This leads to a discussion about whether Roberts is really a judicial "minimalist." No overarching conclusions there.

The piece rolls toward a conclusion with the observation that Roberts doesn't much like quoting law review articles (a quality shared by most judges, I'd say). Here, the key quote is from Harvard lawprof David Barron: "It's as if the answers to all questions are already there, completely internal to the court, to be teased out of the existing cases."

Relying on precedent as the only source of law is an approach with strengths and weaknesses, Professor Barron said, noting that on the one hand, precedent can be a smokescreen, "a rhetorical device to hide the inevitable policy making," while on the other, "it has its own constraining effects," making a judge less likely to embrace dramatic change in the status quo.

True enough, but it's an observation that you can make about nearly any judge. This rhetoric about rhetorical devices is the stock in trade of the law professor...

...including the lawprof blogger. So bring on the judicial metaphors and rhetoric... I need bloggables.

Oh, but the term is over. No new material! We'll have to go back over the old. In fact, I'm running a series of seminars over the rest of the summer here at the law school in which we hash over one case each Tuesday. I'm taking over the first slot, which I'd previously given to someone else, who has an out-of-town opportunity to pursue. I'm the emergency fill-in. I'll be doing the hallucinogenic tea case, which happens to be the first case Akhil Amar talks about in illustrating Roberts' penchant for the "occasionally snappy line":

[Amar point to] a majority opinion that rejected the government's application of federal narcotics law to stop a Brazil-based religious group from importing a hallucinogenic tea for use in its rituals. "The government's argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions," the chief justice wrote.

Ah, good place to end a rambling blog post about hipness! We've got your hallucinogenic drugs and that hippie irritation with the government and all its rules, man.

Why so much tongue?

Don't ask!

Of course if you find anything slightly interesting, not to say titillating, about these images [of stuck-out tongues in ads], the marketers who use them will all but call you a pervert. Yahoo would not talk about the pictures of their tongue woman, though a publicist for the company made it clear she thought there was something a little creepy about being asked to explain it.

Responding to a phone message left at Fox, a spokeswoman who absolutely refused to give her name denied there was anything sexual whatsoever about the image in the "Thirteen" ads and said it was simply an accurate portrayal of the subject matter of the film, girls going wild.

It's not really a hard question though, is it? The stuck-out tongue reminds us of sex and at the same time expresses defiance -- cute defiance.

Now that it's the subject of a piece in the NYT Style pages, the stuck-out tongue is officially a cliché. The article -- I'm looking at the paper NYT -- features a lot of pictures of young women with their tongues out, but the teaser on the front page is that picture of Albert Einstein with his tongue out. The Einstein tongue-out picture is an even bigger cliché than the current mini-trend of young girls with their tongues out. I'll bet some of my readers have that Einstein picture within view right now. (Or is your Einstein poster more somber?) That Einstein photo is widely loved, and I'm sure it is used in plenty of ads too. But generally, the tongue ads favor young girls, not old men.

Bonus observation: It's always the front of the tongue that is displayed, never the back (except for the minimalist display needed to symbolize "yummy"). The back of the tongue [i.e., the underside] , I note, is the ugliest part of the body one can easily display. Yet our gesture of contempt made by sticking out the tongue uses the more presentable top side. Strange, no? Or is the underside so ugly that we keep it hidden even when we're trying to be nasty?

My iPod Shuffle meditation leads to "Ben Casey."

This morning my iPod Shuffle arrived via FedEx. Maybe I'm the world's biggest sucker for cute elegance, but I don't see how anyone can see this thing in its package and not want to buy it. I bought mine on line, but I'm just astounded by the coolness of the flat, square, green package with its vertical window within which floats the amazingly tiny and minimalist device. I expected to be surprised by how small it was, which you would think would prevent actual surprise, but I was in fact surprised.

It took me a while to open the package, because I spent some time just admiring the package. But eventually I extracted my new toy from its wrapper. Who can look at it and not think of a pack of Wrigley's Spearmint Gum? One almost smells and tastes minty-ness – is that why the package is green? Unlike a pack of Wrigley's Spearmint Gum, the corners are soothingly rounded and (unless you look at the back) there's no writing to disturb the iconic minimalism of the rectangle with its two concentric circles with their five silently articulate symbols:

+

|<<

>||

>>|

-

Ancient memory stirred up by the symbols: the opening sequence of the "Ben Casey" television show. "Man, Woman, Birth, Death, Infinity." You know they have a special U2 edition iPod. I'd like a "Ben Casey" iPod Shuffle with the 5 Apple symbols replaced by the 5 "Ben Casey" symbols. "Infinity" would be the pause button. "Life" could be the + (volume up) button, and "Death" could be the - (volume down) button. Then we'd have to decide whether "Man" or "Woman" got to be the "forward" button, and who'd be the "backward" button. Better make "forward" the woman and escape charges of sexism!

And by the way, wasn't Vince Edwards (Ben Casey) handsome? I was ten years old when that show first came on the air. In those days, everyone had an opinion whether "Ben Casey" was better than the other doctor show that started in 1961, "Dr. Kildare." I was for "Ben Casey," and my sister was for "Dr. Kildare." How can you prefer "Dr. Kildare"? I would demand. Her answer: "Richard Chamberlain is such a dreamboat." I took the position that Vince Edwards was the better man. But he's mean, she would say. Casey was a moody guy, and Kildare a much sweeter man. Kildare was an internist, handling a variety of cases. But Ben Casey was a neurosurgeon, so all the stories were about people with brain problems. Doctor, this iPod is giving me synesthesia!

You'd think an Apple devotee would be more of a Kildare type. But no!

Talk show strategy.

Did you see P.J. O'Rourke, Cornel West, and Julie Delpy panelling together last night on "Real Time With Bill Maher"? There was a lot of inane yammering, especially by Delpy ("My English is not so good"), and, rather than compete for air time, O'Rourke pursued a finely executed minimalist strategy. Take a look at the rerun, and check out his tiny one-liners. O'Rourke got a lot of mileage out of deadpanning the kind of outlandish opinions that everyone else on the panel blithely attributes to conservatives. I especially liked when he had West for a half-second, after a West rant about drug companies that ended with asking whether you would prefer drug companies that looked for more remedies for sexual impotence or a vaccine for AIDS, and O'Rourke said, "It depends on if I had AIDS."

It's wrong to laugh at memorials, isn't it? But some of these are woefully absurd. Click on the slideshow for pictures of losing proposals for the WTC memorial. Which is worst: two jet planes, a giant question mark, a large steel globe with sprawling legs and long arms with hands that hold a smaller globe, a giant apple impaled on a 900 foot spike, the artificial heart doctor's heart-shaped box kitsch? If you go here, you can search by state or country and find proposals from individual cities. The losing entries implicitly make the argument for Maya Lin-style minimalism.