"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?

"Splitless and factbound."

I.e., not certworthy, but the the Supreme Court took cert in the text messaging called Quon.

Orin Kerr notes a convergence of lawprof blogging and lawprof scholarship.

"Back in 2005 and 2006, a lot of law-professor bloggers wondered whether blog posts could and would serve as ways to advance scholarly ideas about law. At the time, I was very skeptical... and I now think my old self was wrong....  In the past five years, legal blogs have become an acknowledged and accepted part of the world of legal scholarship.... It might be because more law professors are blogging. It might be because our experience has been that what profs say on their blogs is usually the same as what they say in their articles.... [T]here seems to be more of a convergence between scholarly blogging and 'traditional' law review articles today than existed 4 or 5 years ago. That convergence encourages more scholarly blogging and recognizes its value."

All that may be true, but I still maintain, as I did back then, that blogs are a distinct form that offers the opportunity to write in new, challenging, artistic ways. Reading Orin's post reminds me to think of myself as a true blogger, not a professor taking advantage of a device to push out scholarship. Of course, I want credit and regard for my writing here, but because it is different, not because it is the same.

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."