Breaking news: Sandra Day O'Connor just announced her retirement!

Here's the news story so far at msnbc. According to my mother on the phone yesterday, who was telling me about these rumors floating around in Washington, O'Connor's husband is not well and they want to move back to Arizona.

Here's the text from SCOTUS, quoting O'Connor's letter to Bush:

Dear President Bush:

This is to inform you of my decision to retire from my position as an Associate Justice of the Supreme Court of the United States effective upon the nomination and confirmation of my successor. It has been a great privilege, indeed, to have served as a member of the Court for 24 Terms. I will leave it with enormous respect for the integrity of the Court and its role under our Constitution’s structure.

Sincerely,

Sandra Day O’Connor

It's going to be an interesting summer, that's for sure!

More on the theory of evolution and law

By the way, I did hear back from Mr. Leiter thanking me for my interest, explaining a few things to me, telling me when and how the article will be available. Nothing else in this post is a response to what he said; I just wanted to make sure it was known that he did write me back, since I said earlier he probably wouldn't.

Let me clear: what I don't think is that a judge, lawyer, politician, or cop can consciously "use" the theory of evolution to make, interpret, or enforce law. Rather, I would think that evolutionary biologists would be interested in studying the behavior of the judges, lawyers, etc., in an effort to define exactly what makes us essentially human.

It's probably a stretch to say that law is *the* distinctive human behavior. There's religion, mythology, story-telling, etc. But law, I think, is representative of the type of human behavior that meaningfully distinguishes or behavior from other animals. Law also has the advantage of inherently, for its own purposes, keeping records. And I think law is representative of the other unique human behaviors. In fact, the law must be derived from them. Just as linguists theorize of a proto Indo European, or even a proto world language, and comparative mythologists then talk about a proto Indo European (and perhaps even proto world?) religion, there must also be a proto Indo European law. Or at least law-like behavior that becomes law.

At what point, and why, does the human biologist deem behavior to be in the field of social science?

E-mail that I'm sending to philosophy and law professor Brian Leiter

This is a person whose credentials and views expressed in his blog I admire. If I was smarter I might be doing exactly what he's doing (not that I'm not happy doing what I do now). I've discussed his popular and insightful blog in at least one other post. I'm not expecting a response but I just thought I'd let him know my surprise. Here's the link to the post that I'm responding to. Here's the e-mail I sent him. Am I crazy?

Subject: Your upcoming writing projects mentioned in blog

Dear Mr. Leiter:

You're meaning to tell me that you intend to make the claim that evolutionary biology is irrelevant to law? That I gotta see! I've been reading your blog for a few weeks now and thought I understood you but now you've thrown me for a loop ...

I don't read Nietzsche any other way than as treating man as as an animal. Why wouldn't man's animalistic behaviors (with law being among the most distinctive) be subject to the "laws" of evolution? Sure, there is a valid critique of those who would misapply the theory of evolution in an effort to solve legal problems, but it doesn't follow that the theory of evolution is "irrelevant." I'll be very curious how you support your claim. If asked to make that argument, I wouldn't even know where to start.

Why don't you just work it all out on the blog?

Gay Marriage in Canada, Spain

The Canadian House of Commons approved legislation on Tuesday night to legalize gay marriage in Canada (not law yet, though). Just today, Spain passed into law gay marriage. Here in America, at least if you listen to a lot of talk radio, we are opposed to gay marriage. In fact, we're so smart we want to pass an amendment to our founding document to prohibit gay marriage. Oh, that's a good idea! I'd feel so happy if my important rights like free speech and privacy was equated with the right to live in a society devoid of gay marriage. Clearly those rights are parallel.

I suspect that the future will make the United States look foolish on this issue, while countries like Canada and Spain will look visionary. It's no wonder that conservatives are bemoaning our Supreme Court's reliance on International Law. They can see exactly where it's going and they don't like it.

The psychological factor at play is these conservatives who support an anti-gay marriage amendment, and complain about cites to international law, fear any authority but their own. Though they purport to be God-fearing, their refusal to acknowledge the persuasive value of the ethics of other communities betrays their true reluctance to submit to authority. It's a perfectly natural and unavoidable phenomenon, and so I can't hold a grudge against them. In fact, they fascinate me.

Group attempting to exercise eminent domain over Souter's farm

This is a really funny story from yesterday's Concord Monitor (linked here since the Monitor will take it's articles off after a while, I think) that some wealthy Californians have petitioned the selectmen of Weare, New Hampshire in an attempt to exercise private eminent domain over Souter's farm and convert it into a hotel. Surely that will be of greater economic benefit town, they say.

I love crazy shit like that. They say they want to have a copy of Ayn Rand's Atlas Shrugged in every room. They are not, however, associated with the Free State Project, a group of radical libertarians that have all committed to moving here within a certain number of years.

The truth of the matter is that Souter only lives there half the year anyway. The hotel could put that property to better use. Where they do they get the idea that he's so attached to the property anyway? He doesn't strike me as the sentimental type. I'm sure he could be another piece of land in the area, or anywhere else he wanted.

Justice Thomas supposedly suggest that there will be no retirements

According to law.com this morning, which is quoting the Fulton County Daily Report (Georgia), Justice Thomas made suggestions that there will be no upcoming Court retirements. Thomas was speaking at the swearing in ceremony of the new Chief Justice of the Georgia Supreme Court. According to the report

Thomas noted that his court ended its term on Monday as "winds of controversy swirled about the Court's decisions and, unfortunately, about the imagined resignations."

Hard to really give a lot of meaning to that. Seems like he's more frustrated about the controversy and says "imagined resignations" as an attempt to dispel it, not as a way to disclose any information. If anything, I could see him erring on the side of saying imagined so that he doesn't get in trouble by disclosing something he shouldn't. But who knows.

Reaction to this term of the Supreme Court

Over at Sentencing Law and Policy, Professor Douglas Berman is critical of the Court's obsession with death penalty cases, while wavering and qualifying with sentencing in general (e.g., Booker, etc.). As Berman and the writer he quotes point out, the death penalty is relatively infrequent in the big picture of punishment as a whole. Not that Berman seems to be against the death penalty.

Berman links to Tom Goldstein's list of 10 Court cases of the term at SCOTUS. Of that list, I'm going to pare it down to six big decisions (this is entirely my subjective analysis, based on how much people have been talking, and my legal instinct).

1. Kelo - city can exercise eminent domain for public development as long as the town has a plan in place for how the taking will benefit the community that it serves [5-4] (takings clause of the fifth amendment)
   
2. Grokster - peer to peer file sharing software and marketing schemes themselves violate copyright law when they deliberately and openly facilitate widespread copyright infringement [9-0] (copyright law)
   
3. Raich - feds can criminalize medicinal marijuana even when state has legalized it [6-3] (interstate commerce clause)
   
4. Roper - state can't execute a person who was a juvenile at the time of their offense [5-4] (8th amendment)
   
5. Booker/Fan Fan - the federal sentencing guidelines, to the extent that they allow a judge to enhance a sentence based on facts not found by the jury, are unconstitutional [5-4] (6th amendment right to jury trial)
   
6. Van Orden/ McReary County - ten commandment ok as one of multiple statutues on the courthouse lawn, but not ok as a framed copy inside the courthouse [5-4 on each with Breyer as the swing vote] (first amendment establishment clause)

Of these cases, I'm most inclined to "agree" with the rulings in Roper, Booker, McReary County and "disagree" with Grokster, Raich, Van Orden. Kelo, as mentioned a few posts ago, I'm right on the fence on, but inclined to agree with.

More Detail on Today's Supreme Court Decisions

Ten Commandments: I was a little hasty before in my reporting of the Ten Commandments case. In one case, McCreary County v. American Civil Liberties Union of Ky., the Court reversed, finding that framed copies of the Commandments inside a Kentucky courthouse did violate the Establishment Clause (First Amendment). On the other hand, in another case, Van Orden v. Perry, a statue on the grounds of Texas Courthouse, one of 17 historic displays on the property, did not run afoul of the Constitution. Both cases were decided 5-4, with the swing vote coming from Justice Breyer.

File Sharing: In Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., the Court ruled 9-0 in favor of MGM, and against a file sharing company. This is a big win for the record and file industry. However, the Court could not agree on exactly what constitutes the outer bounds of permissible software and marketing for file sharers.

Various blawgs are covering these (see link to the side): SCOTUS, How Appealing, the Volokh Conspiracy. SCOTUS has, in fact, established mini-blawgs to discuss the Commandments case and Grokster.

Supreme Court strikes down ten commandments display in front of courthouse

Here's the article at CNN. SCOTUS promises to report the case soon, and will likely have in-depth analysis. This has been one of the most watched cases of this term. Souter wrote the majority, and was joined by Breyer, Ginsburg, Stevens, and O'Connor. Scalia wrote the dissent joined by Rhenquist, Kennedy, and Thomas.

Still waiting word from Rhenquist, and possibly even O'Connor, of possible retirements.

I just posted the photo below so that I could have a link to use for my profile. I need to get a better photo, but that's what's available.

Will be back tomorrow (later today) with more.