Supreme Court arcana

Mark Tushnet tushnet at law.georgetown.edu
Thu Jun 23 14:50:28 PDT 2005


1.  In Halbert, at note 7, Justice Ginsburg slips from the usual 
"we" to this:  "the remainder of the dissent's argument slips from 
my grasp" -- again, presumably, end of Term sloppiness rather 
than an indication that her opinion was originally a dissent.  
(Justice Thomas's citation of an as-yet-unreleased decision, 
noted earlier, falls in the same category.)

2.  Having read Kelo, I'm now less attracted to the idea that the 
citation to which David Bernstein directed our attention has any 
significance at all, even for the "sloppiness" point.  The first 
footnote points out (presumably to save repetition later) that in a 
decision reported two volumes later in the U.S. Reports, the 
Court held that the Fourteenth Amendment applied the Fifth to 
the states.  A truly compulsive law review editor might have 
insisted on repeating the citation at the point David identifies, but 
Justices don't face the same compulsions.  (And, if one strains 
-- or perhaps reads the sentence the citation supports naturally 
-- the sentence refers not so much to which Amendment is 
being applied but what the standard is when [whatever 
amendment it is] is applied.)

3.  Also on Kelo, my wife -- a dedicated ACLU sort -- has a 
lingering affection for the takings clause, born of the first case 
she handled after law school, a suit against the city of Dearborn 
for its use of what we would now call regulatory takings via the 
application of zoning rules to make economically unviable the 
city's Arab neighborhood.  So, the political valence of a 
restrictive takings doctrine may be more complicated than it 
might seem at first.
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