Stone Court

Not sure what to think of this, but clearly worthy of chronicling. On the DL is a (relatively) new blog devoted to the off-field hijinks of major league baseball players. The most recent entry is a cell phone photo of Tigers left Kenny Rogers (most recently famous for assaulting a professional photographer and before that for giving up more than a run an inning during the Yankees' successful 1996 playoff run) with a woman not his wife....

At Volokh, conservative law professor Orin Kerr has done excellent spade-work in creating an outline of the key issues involved in evaluating the legality of the NSA's domestic surveillance program. Even if (like me) you [UPDATE: don't (oops)] share Kerr's politics, I recommend it as a place to start in thinking about the legal issues involved. My initial and also tentative reactions:

Kerr's tentative conclusions, recognizing that we don't know the details of what has been going on, are that the program is probably not unconstitutional -- i.e., it would be legal if authorized, or possibly if not prohibited, by statute -- but that it probably is prohibited by the Foreign Intelligence Surveillance Act ("FISA"). (I am inclined to agree with this conclusion, except that the constutionality of the program depends on unknowns about how closely the program has adhered to legitimate national security needs, a subject on which I am far less trustful of the Administration that is Kerr.)

Kerr is unpersuaded by the argument that the program is authorized by Congress's Authorization to Use Military Force ("AUMF") in Afghanistan, although he views this argument as less laughable than it would seem at first blush. Again, the details here are critical. I think one could make a plausible case that AUMF authorizes some wiretapping that is closely tied to the war in Afghanistan -- for example, if we knew that there was a mole at the Pentagon who was emailing troop positions to the Taliban, I would think AUMF would allow warrantless monitoring of a finite and well-defined set of emails that could be the source of such information. The Administration's apparent view, however, that the authorization to use "force" really means the authorization to take any actions of any nature, is wholly unpersuasive.

Finally, Kerr finds no legal support for the notion that the President possesses inherent authority to disregard acts of Congress in this area, although he seems to conclude that this is essentially an open issue. It seems to me that the structure of the Constitution is at odds with the broad and unrestrainable Presidential powers Bush is claiming, with the caveat that I would think the President can and should act in a genuine, short term emergency unforseen by Congress. (Concretely, in the days after September 11, 2001, the President had the inherent authority to disregard prohibitions on electronic surveillance in the interests of national security, but only for a reasonable time until the issue could be presented to and decided by Congress.)

Or could you not watch the last half hour of King Kong, which takes place on a wintery New York night, without thinking constantly, "Naomi, put a sweater on!"?

Rover indictment odds up 15.5% at Intrade.

Jessica at Feministing discusses a new Norwegian study that purports to find that "women who have had abortions experience more long-term feelings of guilt and shame than women who have had miscarriages". She is rightly concerned that, even if the study is methodologically sound (which is not at all clear), that it may be misused by anti-choice advocates (who themselves have been encouraging women to feel guilt and shame for choosing abortion).

This reminded me of another recent study, which I found via Zywicki at Volokh. The study, Mandatory Waiting Periods for Abortions and Female Mental Health, concludes that mandatory pre-abortion waiting periods reduce female suicide rates and, by implication, are good for women's mental health. From the abstract:

Panel data analyses suggest that the adoption of mandatory waiting periods reduce suicide rates by about 10 percent, and this effect is statistically significant. The result is robust to various attempts to control for unobservable heterogeneity and simultaneity.

On its face, that seems like an anti-choice conclusion, since it would seem to provide at least some support of imposition of waiting periods (assuming for the sake of argument only that advocates of waiting periods actually care about women's mental health rather than simply about imposing any burden to abortion that they think can pass constitutional muster).

However, the study itself provides a much more complicated picture than the abstract. In particular, the author's analysis (see pp. 21-24) of why waiting periods reduce suicide is not that they reduce abortions or that having an abortion increases suicide. To the contrary, he cites evidence that reducing public funding for abortion increases the risk of suicide for women who cannot afford abortion. His conclusion, therefore, is that the effect is caused by reflection -- in effect, women who choose abortion after a waiting period have fewer regrets.

But, of course, waiting periods are not the only way to encourage reflection. For example, improving sex education and destigmatizing abortion would also encourage reflection (as might public funding of mental health care). In a free society, we normally prefer education to compulsion. What I take from the study, therefore, is that the observed mental health effects are actually quite consistent with a pro-choice worldview -- namely, that having greater public discussion and funding of abortion helps women.

When he assumed the presidency, Gerald Ford famously, and modestly, remarked, "I'm a Ford, not a Lincoln."

Unfortunately, with Tennessee Guerilla Woman reporting today on the lamentable gay-rights records of Ford Motor Co. and Senate wannabe Rep. Harold Ford, it appears that there is another Ford who can say the same.

Alito's 1985 memo outlining a strategy for "advanc[ing] the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects" is overwhelming evidence of Alito's hostility to choice.

One significant aspect of the memo that I have not seen discussed elsewhere is that it also puts the lie to a central pro-Alito talking point -- namely, that whatever Alito's personal views, as a Justice he will be cautious about overturning established precedent (see, e.g., here, here, here, here, and here).

Beyond making clear his overarching, and carefully though-out, agenda to overturn Roe, the 1985 memo makes clear that Alito has no patience for the notion that precedent ("stare decisis" in legalese) bars overturning Roe. Footnote 10 on page 17 reads:

The case against Roe v. Wade has been fully and publicly made. See, e.g., A. Bickel, The Morality of Consent 27-29 (1975); A. Cox, The Role of the Supreme Court in American Government 112-114 (1976); Epstein, Substantive Due Process by Any Other Name, 1973 Sup. Ct. Rev. 167-185; Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920 (1973). In Akron, the Court's response was stare decisis and the "rule of law."

Alito's message is clear: In the face of what he sees as overwhelming arguments, stare decisis is not a sufficient answer.

Link via Media Girl.

Reuters reports that Pope Benedict may be considering eliminating teaching that babies who die without baptism must go to Limbo rather than Heaven or Hell.

This issue highlights the core problem with a religion claiming as a part of its fundamental doctrine to know the unknowable. The Church can change its view on charging interest or whether Mass must be conducted in Latin or the like with little challenge to the Church's fundamanental integrity, but when you have been teaching as fact for thousands of years that you know what happens to people after death, how do you just turn around and say, "Never mind"?