Saturday, May 14, 2005
Landell v Sorrell en banc non-opinions:
I just got around to reading Guido Calabresi and other judges of the 2nd circuit weighing in on when a circuit should rehear a panel opionion that conflicts with Supreme Court precedent, here Valeo.
I am troubled by the attitude among some of the majority, which voted not to rehear,
that they get a "free vote" when the panel opinion is contrary to the Supreme Court's holdings on point.
Is this merely results-driven, or are there other cases that make this same point?
Are they telling the truth, or lying, and, if lying, why so blantantly?
There was a time once when I thought the court system was arranged hierarchically, with the Supreme Courts on top, and other subordinate courts geographically applying the rules set out by the top court to larger numbers of cases.
Instead, if we look at the 9th circuit as a model, what we have is a rebel alliance,
in which the lower courts pick and choose which of the Supreme Court cases they will follow, based on personal preferences.
Those preferences, in turn, may be shaped by marching orders from partisan actors.
Partisan in the sense of factional.
One of the dissents is scathing on this point, and rails against constitutional law professors and certain elements of the mainstream media.
I have had, in my head, the abstract of paper on this thesis, called "The kentucky exception to anonymous political speech." But I've never gotten it written down, beyond a few false starts.
I just got around to reading Guido Calabresi and other judges of the 2nd circuit weighing in on when a circuit should rehear a panel opionion that conflicts with Supreme Court precedent, here Valeo.
I am troubled by the attitude among some of the majority, which voted not to rehear,
that they get a "free vote" when the panel opinion is contrary to the Supreme Court's holdings on point.
Is this merely results-driven, or are there other cases that make this same point?
Are they telling the truth, or lying, and, if lying, why so blantantly?
There was a time once when I thought the court system was arranged hierarchically, with the Supreme Courts on top, and other subordinate courts geographically applying the rules set out by the top court to larger numbers of cases.
Instead, if we look at the 9th circuit as a model, what we have is a rebel alliance,
in which the lower courts pick and choose which of the Supreme Court cases they will follow, based on personal preferences.
Those preferences, in turn, may be shaped by marching orders from partisan actors.
Partisan in the sense of factional.
One of the dissents is scathing on this point, and rails against constitutional law professors and certain elements of the mainstream media.
I have had, in my head, the abstract of paper on this thesis, called "The kentucky exception to anonymous political speech." But I've never gotten it written down, beyond a few false starts.
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