A powerful implicit argument against the death penalty.

A judge orders anesthesia for an execution by lethal injection, but anesthesiologists decline to participate.

[The judge] then said officials could go forward later in the day with a lethal dose of the sedative alone — administered by a licensed medical professional stationed within the execution chamber rather than by the usual "unseen hand" delivering the fatal drugs from another room.

But just two hours before the new, 7:30 p.m. time for the execution, a deputy attorney general told court officials that it had been called off.

San Quentin spokesman Crittendon said the state "was not able to find any medical professionals willing to inject medication intravenously, ending the life of a human being."

The doctors' behavior makes a powerful implicit argument against the death penalty.

Slutskaya wore pants!

And Sasha Cohen?



As they say on "Project Runway," "too much tootie." Quit aiming that thing at me.

Seriously, I love the Slutskaya unitard approach. It creates an unbroken line and feels coherent with the winter setting, unlike naked-looking legs. And with those flesh-tone tights, you've always got that contrasting strip of fabric across the crotch -- like a sanitary napkin! And it is repeatedly displayed, and we can't help staring at it! Why is that not considered grossly vulgar? The unbroken black line of the great Irina Slutskaya speaks of grace and taste.

How will blogging affect legal scholarship?

For the better! That's what I've been saying. Here's an article in the Wall Street Journal on the subject:

[A]ccording to Daniel Solove of the George Washington University Law School, professors shoulder much of the blame for the plodding prose of many law review articles. "We academics," he recently blogged, "like to dress up our ideas to make them sound more elaborate, complex, and obtuse." When it comes to article length, tenure committees often don't help matters, says a junior professor at a law school in California. "It's a self-perpetuating process," he explains. "Senior faculty had to produce massive articles in their own bids for tenure, so now we're expected to do the same thing."

Yeah, I wrote a law review article saying this -- "Who's to Blame for Law Reviews?" That was over 10 years ago. I really thought we could switch over to a livelier essay form, but somehow that didn't happen. The damned things just got more bloated. Law reviews let lawprofs get away with writing what are (essentially) unpublishable books. Law reviews are our own vast vanity press!

The focus of much current scholarship -- theoretical work with no real application for judges, practitioners, or policymakers -- has reduced the audience for it outside the legal academy.

Even in the academy, lawprofs rarely read these things, unless they're trying to help out a colleague. And even then, I think they skim.

But I think blogging is a powerful force that can change things, certainly more that my old, heartfelt essay. We blogging lawprofs have a demonstrable readership, and we interact with each other and with the mainstream press about legal issues. This is all in plain view. That has to provide some motivation to the lawrevs to adapt.

Twenty years ago, little outside of the occasional book or magazine article deflected attention from law reviews. Today, legal blogs are siphoning away the attention of law professors and lawyers on issues of the day. Blogs such as The Volokh Conspiracy, Opinio Juris, and SCOTUSBlog attract tens of thousands of readers and feature informed discussion on everything from constitutional theory to law-related television shows. Blogs now occupy so many professors, in fact, that at the American Association of Law Schools annual conference, a panel was held to debate the influence of blogs in the legal academic community.

Oh my! Imagine something so important that there was a panel on it at the AALS meeting! The mind boggles!

The Court will consider the "partial-birth" abortion law.

Yesterday, the Supreme Court agreed to hear the case about the federal Partial-Birth Abortion Ban Act, which makes it a crime to kill when the "entire fetal head" or "any part of the fetal trunk past the navel" is outside of the womb, except when the woman's life is at risk. There is no exception made where the procedure is needed to preserve the woman's health, but Congress made findings that "partial-birth abortion is never medically indicated to preserve the health of the mother" and that "there is no credible medical evidence that partial-birth abortions are safe or are safer than other abortion procedures."

The doctors challenging the law disagree with that second finding and say that the alternative method involves breaking up the fetus inside the woman, creating bone fragments that can puncture the uterus. That is, Congress is forcing some women, who need a late-term abortion to preserve their health, to destroy the fetus with a method that is at least as brutal to the fetus and more harmful to the woman.

Ever since Roe v. Wade and its companion case, Doe v. Bolton, in 1973, the court has required exceptions for health as well as life in any regulation of abortion. But the vote in the [Court's earlier "partial-birth" abortion] case, Stenberg v. Carhart, was 5 to 4, with Justice Sandra Day O'Connor in the majority. It is highly likely, therefore, that her successor, Justice Alito, will be in the position to cast the deciding vote. The dissenters in the Nebraska case were Justices Antonin Scalia, Clarence Thomas and Anthony M. Kennedy, along with Chief Justice William H. Rehnquist, who has since been replaced by Chief Justice John G. Roberts Jr.

After the court's announcement, groups on both sides of the abortion debate tried to attach some significance to the decision to accept the case. In fact, it would have been highly unusual for the court to turn down the appeal. A lower court's invalidation of a federal statute has an almost automatic claim on the justices' attention, even those justices who may view the decision as correct or those who may not necessarily agree in this instance with the administration's description of the case as "extraordinarily important."

The difference between this case and Carhart, other than the change in the Court's personnel and the fact that this is a federal, not a state law, is that Congress made those findings. In that light, this becomes a case about how much the Court ought to defer to a legislature when it acts in an area of individual constitutional rights and makes assertions about facts in order to define away those rights. I do not think that is territory the Court should cede to the legislative branch. It is the Court's duty to say what rights are, and if rights are to be rights, a legislature seeking to work its will should not also have the power to structure the factual setting to make it look as though rights it wants to preclude do not exist.

Meanwhile, the South Dakota legislature is about to ban all abortions unless the woman's life is in danger:

"I'm convinced that the timing is right for this," said State Representative Roger Hunt, a Republican who has sponsored the bill, noting the appointments of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. to the court.

"The strong possibility of a third appointee sometime soon makes this all very real and very viable," Mr. Hunt added, a reference to conjecture that Justice John Paul Stevens, 85, might soon retire. "I think it will all culminate at the right time."

Dome.

Done.

"American Idol" -- the first 12 ladies.

Now we can finally vote, and we see the females, two of whom will be eliminated this week.

Mandisa sings Heart's "Never." I thought it was tasteless and ugly, but Randy and Paula rave. Simon? Oh, he's raving too. What nonsense! They are lavishing praise on her, it seems, to suck up to all the many plus size "American Idol" fans.

Kellie Pickler: "I don't really have a love life." But she's going to do this song -- "How Far," a sexual song -- for her dad. Kind of icky. But we're reminded again that her dad is in prison, and she is a woman of sorrow. It's atrocious, and she's doing that "American Idol" pose I so detest, planting her feet wide apart and doing shallow knee bends. It's so crotchy -- but sexless! They tell her she has the likeability factor. "You're a nice girl," Simon says.

Becky O'Donohue, she's the girl with the miming twin. I detest her. Much as I feel for her muted twin, I find her intolerably phony. But she's doing "Because the Night." That's something. Let's listen. Yikes! She's doing Patti Smith, cornball style. She's gesticulating in a way that says: you must find me sexy. Patti would never do that! I'm horribly nauseated! Simon: "Visually, you are a 10, but..."

Ayla Brown, the beautiful basketballer. She motivates herself by thinking about how Simon called her "robotic" and "empty." She's singing some cheesy song in a horribly cheesy style. Oh, it's something like "Reflection." It's harsh and abominable. She puts that pop-groan into it, but I'm not embarrassed for her, because she's so pretty and so tall. When she's done, she says, "I just feel so complete," as if she'd just had sex with herself. Appalling! But will the judges complain? Again with the praise. Is there no relenting? Simon calls her a "hard worker" with "a limit." But he credits her with "some emotion." Disgusting overpraise!

Paris Bennett: she's one of the very best from the auditions, and she's going to sing "Midnight Train to Georgia." Great! But the song seems to be in the wrong key, and the singing is so unmusical compared to the audition. Judges? Randy: "Whoa!" Paula: "You're my idol!" Simon: "It's a performance everyone's going to remember."

Stevie Scott, a special favorite of mine. She's the one who's studied opera. And quite aside from that, I'm getting a nice "Joan of Arcadia" vibe from her. She's singing an opera song, "From Where You Are." Ooh! She does the Kelly Clarkson stomach grab! She's breathy and sweet. Randy: "Dude, I found myself daydreaming." Paula: "Very intimate." Simon: "You completely and utterly messed that up... It was like being at some Sunday lunch and some child gets up to sing." Whoops! Afterwards, she apologies and indicates she can do what they want. Crash! And now she's desperately acting sexy with Ryan. Noooooooo!

Brenna Gethers, the biggest ham. Ooh, she's squirming her body up against Ryan Seacrest! You don't want to see that. Aw, but she's singing "You Are the Sunshine of My Life." She has five different voices, and she specializes in sticking out her ass and slapping it. Simon: "That was horrible, completely and utterly..." The problem is the safe song, when she's supposed to be a wild cat.

Heather Cox is singing some damned "American Idol" song. Apparently, she wants to pull the stars down from the sky. Despite her lovely chest, she's horribly unmusical and off-key. Please, make her go away. Randy only calls her boring. Paula says it's not great. Simon only calls it "forgettable," but then redeems himself with an honest word: "horrible."

Melissa McGhee. She's weak and dull. "When the Lights Go Down." This is so ugly that I have to ignore it. Somehow, Paula thinks it was a "shining moment."

Lisa Tucker. She's adorably 16. I love her. The audience is screaming. She sings in a beautifully mature style -- "I'm changing" -- that makes all the other girls seem lightweight and ordinary. Lisa!

Kinnik Sky. "Get Here," a song I associate with Justin Guarini. She has a heavy, overbearing voice. Paula: "Sharp notes? A few. So what!" Simon sneers, "Very cabaret."

Only one more. They usually save the best one for last, and it's the one I remember as the best from the auditions:

Katharine McPhee! She sings "Since I Fell For You," which she imagines was originally sung by Barbra Streisand. "I get the blues most every night." Randy: "Wow, wow." Paula: "Fantastic. I think you're going to go all the way." Simon: "There were four very, very good vocalists tonight, and you were the best."

Just[ices] say yes to hallucinogenic tea.

The Supreme Court is back from a long break today, with Samuel Alito on the bench for the first time. There's a new opinion, in the hallucinogenic tea case:

Justices, in their first religious freedom decision under Chief Justice John Roberts, moved decisively to keep the government out of a church's religious practice. Federal drug agents should have been barred from confiscating the hoasca tea of the Brazil-based church, Roberts wrote in the decision.

The tea, which contains an illegal drug known as DMT, is considered sacred to members of O Centro Espirita Beneficiente Uniao do Vegetal, which has a blend of Christian beliefs and South American traditions. Members believe they can understand God only by drinking the tea, which is consumed twice a month at four-hour ceremonies.

I'll read the case and have more later. Here is my earlier post on the oral argument in the case:

A religious group wants to use a drug -- hoasca -- and argues that the Religious Freedom Restoration Act entitles it to an exemption from the Controlled Sustances Act. Under RFRA, the federal government must have a compelling state interest to impose a substantial burden on the free exercise of religion. The government claims an interest in preventing the drug from being diverted into other uses:

"Your approach is totally categorical,'' Roberts told government lawyer Edwin Kneedler during a one-hour argument session in Washington. If a religious group used only one drop of the drug a year, : "your position would still be the same,'' Roberts said....

Justice Antonin Scalia, who wrote the 1990 decision, pointed to an exception Congress made for peyote in American Indian religious ceremonies.

"It's a demonstration you can make exceptions without the sky falling,'' Scalia said.

Justice John Paul Stevens followed up by asking whether the use of peyote indicated that "maybe it's not all that compelling.''

Of the nine justices, Anthony Kennedy offered the strongest support for the government's position.

"It seems to me at the very least there should be a presumption that there is a compelling interest,'' Kennedy told Nancy Hollander, the church's lawyer....

Several justices, including Scalia and Roberts, questioned Hollander's contention that hoasca is exempted under the 1971 United Nations Convention on Psychotropic Substances, which aims to bar trade in illicit drugs. The U.S. is among more than 160 signatories to that treaty.

Both Scalia and Roberts, however, said Congress has the authority to override a treaty through domestic law.

"Isn't it well established that statutes trump treaties?'' Scalia asked.

Interesting! I suppose people will compare this to last term's medical marijuana case, Raich, in which the Court (including Scalia) was quite deferential to the claim that the government needs to be able to pervasively regulate a drug. But Raich was about the scope of Congress's power as against the power of the states. Today's case is about two different federal statutes, one coming after the other and capable of limiting it. The question isn't how much constitutional power Congress has, but what Congress actually did in its two statutes. If it didn't want to cut special exemptions to religious groups, it shouldn't have passed the Religious Freedom Restoration Act. If it didn't want RFRA to apply to drugs, it could have written an exception into it. But in fact, RFRA was enacted in response to a Supreme Court case that was about the failure to give special treatment to the religious use of a drug, so it's especially apt that it should apply here.

Today's opinion is unanimous (with, Alito, of course, not participating). It's written by the new Chief Justice, so I'm especially interested in reading it. I so devoutly hope to find his opinions sublimely crisp.

UPDATE: I’ve read the case, which is called Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal. The government said it has a compelling interest in the uniform application of the federal law, but Roberts slapped that down:

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. But RFRA operates by mandating consideration, under the compelling interest test, of exceptions to “rule[s] of general applicability.” Congress determined that the legislated test “is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.”…

We do not doubt that there may be instances in which a need for uniformity precludes the recognition of exceptions to generally applicable laws under RFRA. But it would have been surprising to find that this was such a case, given the longstanding exemption from the Controlled Substances Act for religious use of peyote, and the fact that the very reason Congress enacted RFRA was to respond to a decision denying a claimed right to sacramental use of a controlled substance.

There was also an argument that the government has a compelling interest in complying with the international Convention on Psychotropic Substances, which, the Court held, did in fact cover hoasca. But the government failed to present any evidence of what detriment would occur if this small group were given an exemption.

The Court tweaks the government for relying so heavily on interests represented by the Controlled Substances Act:

Congress had a reason for enacting RFRA, too. Congress recognized that “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise,” and legislated the compelling interest test as the means for the courts to “strik[e] sensible balances between religious liberty and competing prior governmental interests.”

We have no cause to pretend that the task assigned by Congress to the courts under RFRA is an easy one. Indeed, the very sort of difficulties highlighted by the Government here were cited by this Court in deciding that the approach later mandated by Congress under RFRA was not required as a matter of constitutional law under the Free Exercise Clause. But Congress has determined that courts should strike sensible balances, pursuant to a compelling interest test that requires the Government to address the particular practice at issue.

I must say that I find this case quite amusing! Congress catered to religious interest groups by passing RFRA and thereby disagreeing with the way the Smith Court had read exemptions out of the Constitution's Free Exercise Clause. The Court had tried to constrain the judicial role, but Congress then forced that role on the courts with a statute. And now the Court is taking the statute seriously. They are deferring to Congress by accepting the old activist role of making case-by-case accommodations. How deliciously ironic.