Is That Legal?

I am clearly out of my depth, but Alito, Scalia and Thomas seem to make decisions based solely on their belief systems. The constitution and the law seem to be of lesser importance than their beliefs.

How come they are not denounced as bad judges?

Eric, Shmuel, I completely agree that we should respect earlier supreme court precedent with which we disagree. Stare decisis is really important, especialy when dealing with the huge, blockbuster issues of the day.

I can't wait to see Plessy, Lochner and Korematsu, among other old and oft-relied upon cases, given the respect they deserve... After all, they stood for a long time and could, in Senator Shumer and Spector's terms, be described as "super duper precedent," especially Plessy, which was relied upon by hundreds of courts for well over half a century, much like Roe is now...

/acidic sarcasm

Scalia rather archly termed undue reverence for bad precedent "the error with tenure doctrine." I tend to agree with him.

Let's admit it. We don't give a damn about the law, it's just the most effective argument we can make right now to derail Alito. What we really want is a supreme court that will give us whatever we happen to want, right now - like a super legislature, without having to go to the trouble of compromising and convincing people of your argument, in order to build an electoral majority.

Eric, thank you for your very cogent analysis. I'm providing a link to it on my own blog. I mean, it's in English and everything!

Seriously, thank you!

good catch.

as a legal civilian, one of the things i don't get so much is how a court can sit as a partial group like that...i assume to move cases faster?

but that kind of quick and thoughtless reversal is one of the thigns that tears up respect for the courts as reasoned arbiters of the law.

Stare decisis concerning abortion (Roe v Wade) makes a lot more difference than the same doctrine (or law of the case) relating to an Xmas/Kwanzaa/Hanukkah display, yes? Maybe this suggests Alito has little patience for ACLU types fussing about details of decorative displays. I tend to agree, if he has that bent.

I have not heard of judges asking for en banc (more than 3 judge) review, as opposed to parties.

Alito sua sponte (on his own iniative) calling for en banc review might seem like overkill, given the decorative display at the core of the case.

I am not too offended by Alito simply taking the bull by the horns in this case. But I still am not convinced I trust Alito with Roe v Wade.

Professor,

This strikes me as rather thin soup. A second 3 judge panel chose not to read as a holding what 2 of the 3 later judges read as dictum, and because one judge (from the original panel) was "pissed" at BOTH of them (Alito and the Clinton appointee) this means that Alito is "eager" to overturn "precedents" with which he disagrees?

This is not even a case of "overturning" a precedent, as you (to your credit) acknowledge--Alito and his colleage may be reading the first decision correctly. But, you say he COULD have read it otherwise. Well, sure, if by otherwise you mean "incorrectly" as he and the Clinton appointee Rendell read the first case. And of course, Judge Nygaard, for all his anger, is just wrong that it takes an en banc in this case, as you also must know. Of course, to you, this is only a "technical matter" of course. Do you teach your students to treat the difference between holding and dictum as a mere technical matter about which judges should not try to be clear?

As with the infamous "french fry" case and Judge Roberts, this looks like another unpersuasive attempt to paint as radical an absolutely mainstream judge, one who 3 out of 4 times voted to strike down abortion restrictions but is somehow only touted as "anti-Roe" for upholding a bit more of a law than O'Connor eventually would.

Interesting that Midge Rendell signed on with Alito. Then again, she was never considered to be a liberal pick. Clinton picked her because Arlen told him to... Ed Rendell worked for Specter in the DA's office, etc.

I've always taught non-establishment as meaning that a holiday light display on public property that includes secular symbolism like a snowman or a Christmas tree will pass constitutional mustard in a way that a purely religious display on public propery would not. So I'd agree with Alito on his holding in this case.

I'm less persuaded that he would stick with his previous rulings on the abortion cases. I would expect the dynamic as an appellate court judge would be that you don't attempt to challenge a precedent if you know that you'll be overturned on appeal. Alito could "look upstairs" and see that if he moved too far to the right on abortion, the Supreme Court would slap him down.

But if he were on the Supreme Court as part of a majority that wanted to limit or overturn Roe, then there'd be much less reason to yield to precedent. No one to overturn your decision there.

What are the rules governing precedent on the federal appellate level? Are they different circuit to circuit? My outrage meter on this case is barely pushing 0.2 (out of ten), but I find most Establishment cases to be extremely trivial.

One 3rd circuit panel disagreeing with another 3rd circuit panel is not even close to the weight of one supreme court decision on the supreme court. To say that a contradictory decision in a 3rd circuit panel is reflective of what a judge would do put in the position of a supreme court justice is a far more extreme legal position than anything Alito has ruled on.