Legal Commentary

Most frighteningly plausible fantasy I've read this month

By Beldar

On the Balkinization blog, Michael Stokes Paulsen posts the Opinion of the Court (written by Mr. Justice Kennedy, and joined by Justices Souter, Ginsburg, Breyer, and Clinton) in Spitzer v. United States. (H/t InstaPundit.)

The largest flight of fantasy is that the underlying conviction is for solicitation of prostitution, which, of course, is not ordinarily a federal crime. But perhaps that was what indeed was charged, with the United States as prosecution and now appearing as the respondent on appeal because the solicitation case was filed under District of Columbia Code § 22-2701 (and not in the New York state courts under New York State's laws against prostitution). Under this scenario, Spitzer was never charged with, or perhaps pleaded out to, a separate federal financial crime (e.g., structuring) or morals crime (e.g., Mann Act) in the federal courts for the Southern District of New York.

Even the list of Justices in the majority is chillingly plausible ? and under more than one scenario. Obviously, "Justice Clinton" has been the successor to Mr. Justice Stevens. But is that "Mr. Justice Clinton," or "Madam Justice Clinton"? It could be the latter if President Obama was making good on the "Great Denver Convention Compromise of 2008," whereby the Clintons were promised his first (or perhaps first two?) SCOTUS appointments in exchange for Hillary releasing her delegates. Or it could be the former if President Clinton wanted to find some way to get Bill the hell out of 1600 Pennsylvania at least a few hours every week ? and who knew he and Justice Scalia would become such card-playing buddies? Either Clinton would be a historic nomination, marking either the first Justice who'd failed the District of Columbia Bar Exam, or else the first Justice whose state law license had been suspended and who'd consequently resigned (under pressure of impending permanent disbarment) from the bar of the SCOTUS itself. Notwithstanding those disabilities, either could surely expect confirmation votes from every Democratic senator.

The single best and most terrifying sentence in the opinion is this one: "There is no persuasive basis for distinguishing the Lawrence Liberty here." Those of us who are critics of Lawrence v. Texas, and of the purported constitutional theory of "substantive due process" (an oxymoron) upon which it is founded, believe that precisely this same sentence could be used in comparable opinions justifying constitutional "rights" to damn near anything, so long as Justice Kennedy can be persuaded on any given day that it's part of the "sweet mystery of life."

Full post as published by BeldarBlog on March 17, 2008 (boomark / email).