Category Archives: Rehnquist

Lockhart v. Nelson

488 U. S. 33

November 14, 1988

Criminals could be sentenced to extra time if they could be proved ‘habitual offenders’ by the introduction of four prior convictions. Four prior convictions were offered for burglar Johnny Lee Nelson, but it was later discovered that one of those convictions had been pardoned by Governor Orval Faubus. Nelson argued that he could not be retried because of the Double Jeopardy clause. A case called Burks v. United States held that Double Jeopardy applied when a sentence was overturned on the basis of insufficient evidence. The government argued that introducing the pardoned conviction was a simple trial error, and that the rule against Double Jeopardy for insufficient evidence did not apply.

The Court held 6-3 that introducing the pardoned conviction was a trial error, and that a new trial was possible. Rehnquist stated that Burks was about protecting suspects when the government had totally failed to prove its case in the original trial. Here, a seemingly valid conviction had been introduced at trial, and Nelson’s sentence was later overturned because that conviction’s admission was in error. Rehnquist said that simple errors in admission of evidence were not the same as a simple lack of evidence, erroneous or not. He thus allowed the government to retry Nelson, and introduce four valid prior convictions.

Marshall, joined by Brennan and Blackmun, dissented. Marshall stressed that pardons totally expunge the conviction. Thus, the admission of that conviction into evidence was effectively like admitting a blank piece of paper into evidence. That, he contended, would certainly be a simple instance of insufficient evidence. The government needed to produce four prior convictions, and they produced only three. Marshall also complained that the majority was hasty and conclusory in its opinion, quite in contrast to the careful consideration usually found in the Court’s other Double Jeopardy cases.

Riley v. National Federation of Blind of N. C., Inc.

487 U. S. 781

June 29, 1988

To discourage charity fraud, North Carolina passed a law that placed tiered limits on how much professional solicitors for charitable donations could keep for themselves as a fee. These limits could be rebutted. The law also required solicitors to state to potential donors the percentage of money they had left to charities within the past year. Finally, it required these professionals to be licensed before engaging in any solicitation. All these provisions were challenged as impeding the First Amendment rights of both the charities and the solicitors.

The Supreme Court struck down the licensing requirement 6-3, and the other restrictions 7-2. Brennan cited precedents that had ruled flat restrictions on fees out of order. Although the North Carolina law was more flexible, it was still not flexible enough, and it justification of limiting solicitors to ‘reasonable’ fees demonstrated a paternal belief that the government knew better than the charities themselves. Brennan easily found that the compelled speech of telling donors up front about percentages retained and turned over would burden the collection of funds by scaring away both potential donors and solicitors. Finally, because the stat could potentially hold up indefinitely the licensing of unpopular solicitors, he found the licensing requirement unsound as well. In all cases, the charity’s ability to communicate to the public through its own chosen means was impinged upon.

Scalia concurred in all but a footnote which signaled approval of a hypothetical legal requirement that a solicitor merely disclose his professional status. Stevens concurred in all but the licensing part, feeling that states could be trusted to conduct licensing in a fair manner. Rehnquist, joined by O’Connor, dissented. He felt that the tiered restrictions, complete with the possibility of rebuttal, were nuanced enough to be considered narrowly tailored to. The licensing requirement no more implicated free speech than the requirement that legal defendants retain licensed lawyers. Finally, Rehnquist did not feel that a brief disclosure about charity financing by a solicitor would unduly burden fundraising efforts.

I’m not sure about the fee limits, or the licensing requirements, but I think the compelled disclosure is clearly unconstitutional. If I joined nothing else, I would have joined Brennan’s section on that.

Morrison v. Olson

487 U. S. 654

June 29, 1988

When Ted Olson of the Justice Department was investigated by Independent Counsel Alexia Morrison, Olson challenged, on separation of powers grounds, the law that created the Independent Counsel. Under the law, the Attorney General was required to request a special court to appoint an Independent Counsel if there were reasonable grounds to believe that investigation of a government official could be warranted. The Independent Counsel could be removed by the Attorney General for cause, but would have virtually complete power as a federal prosecutor. The special court had some extra supervisory powers as well.

The Court ruled 7-1 that the law was not in any way unconstitutional (Kennedy did not participate). As is usually the case, Rehnquist first had to brush aside an excrementally stupid justiciability challenge. On the merits, Rehnquist said that the Independent Counsel was an inferior office (i.e. one that could be appointed by someone other than the president) because the Attorney General could dismiss the Counsel, and because the office’s scope and tenure were limited. He also said that appointment by a court rather than an executive official was perfectly consistent with the literal text of the Constitution’s appointments clause. Next, he found that the special court had not been given powers that exceeded the bounds of Article III. Its appointment and supervisory powers were in line with those of other courts. While conceding that some of the special court’s actions might have been ultra vires, Rehnquist said they could be addressed in separate lawsuits.

Rehnquist then addressed the argument that restricting the Attorney General to removing the Counsel for cause interfered with the President’s control of the executive branch, as defined in Myers and Humphrey’s Executor. While the Counsel did perform executive functions, Rehnquist contended that a for cause removal policy did not unduly trammel the Presidential authority, and was a reasonable limitation. The law did not contradict broad principles regarding separation of powers because it was the Attorney General’s decision to request appointment of Counsel in the first place, and because power to dismiss the Counsel still resided with the Attorney General.

Scalia dissented. In his tour de force of an opinion, he showed that the law was a naked encroachment on the President’s authority, and a horrendous distortion of the separation of powers. He noted that, realistically, the Attorney General would have no choice but to request appointment of Independent Counsel if asked to by Congress, because he could only refuse if there were absolutely no reasonable grounds for further investigation. Going on, he contended that any removal of prosecutorial power from the president’s control was far from a trivial encroachment. Prosecution was a core executive duty that no other branch had the slightest right to intrude on. And the president’s right to oversee his branch’s efficient functioning meant that the mere right to dismiss for cause was not enough

Scalia went further, and argued that the Counsel was not an inferior office. It had nearly all the powers of the Attorney General, and had no superior officer in any real sense. Worse yet, the majority relied on no real precedent to conclude that it was an inferior officer. Scalia said the majority also treated Myers and Humphrey’s Executor shabbily, as neither ever suggested that an officer with pure executive functions should be insulated from removal. He contended that the majority’s test for whether good cause restrictions could be implemented was hopelessly arbitrary. Not content to rest there, Scalia showed how the Independent Counsel was terrible public policy. While most prosecutors are forced to use discretion because of the infinite amount of potential cases, special prosecutors have every incentive to keep digging until they find something. Also, by taking away ultimate responsibility from the President, the law ensures that no one can really be held accountable for an out-of-control Independent Counsel.

Conventional wisdom has it that this was Scalia’s greatest dissent ever, and it’s easy to see why. It’s a masterpiece of legal argumentation, and it’s almost unbelievable that no other Justice joined it. Although best remembered for the quote “this wolf comes as a wolf,” I think that barely even makes the top five quotes in the opinion. Even better are:

  • This is somewhat like referring to shackles as an effective means of locomotion.
  • Evidently, the governing standard is to be what might be called the unfettered wisdom of a majority of this Court, revealed to an obedient people on a case-by-case basis.
  • It is in fact comforting to witness the reality that he who lives by the ipse dixit dies by the ipse dixit.

Scalia’s dissent is more timely than ever in light of the ongoing attempts by the deep state, assisted by an evil media and a pliable Congress, to stage a coup against President Donald Trump. The malicious bureaucratic cabal that’s out to get Trump needs to be annihilated, once and for all. Trump needs to have ultimate authority and control, or presidential elections will become meaningless, and Americans will be ruled forever by an unelected deep state hellbent on destroying anyone who tries to restore power to the people.

This is a fight nearly as important as the fight against the destruction of the family through abortion, divorce, and premarital sex. The darkest day of the 1970s was January 22, 1973, when the Roe v. Wade decision was announced. But the second darkest day was August 9, 1974, when President Richard Nixon resigned in the face of vicious, abusive, and amoral ruling class clique. He should have fought to the bitter end, because the nation was crippled forever when he let the bad guys win. In the 43 years since, the godless deep state cabal has only grown more emboldened, more powerful, and more eager to force another resignation on the basis of some BS makeweight ‘scandal.’

All prayers to Trump and Pence in the years to come, for their battles are not merely “against flesh and blood, but against the rulers, against the authorities, against the cosmic powers over this present darkness, against the spiritual forces of evil in the heavenly places” – Ephesians 6:12.

Bowen v. Kendrick

487 U. S. 589

June 29, 1988

In the Adolescent Family Life Act (AFLA), Congress allowed grants to be given to organizations for the education of children. The children would be encouraged toward premarital chastity and adoption instead of premarital sex and abortion. Grant applicants were required to state how they could involve religious organizations (among other community organizations) in the program). Some religious affiliated groups received grants, and some allegedly used the grant money to teach religious doctrines about sex and pregnancy to children. The AFLA was thus attacked both facially and as-applied.

The Supreme Court upheld the act 5-4. Rehnquist considered the facial challenge first, under the Lemon test. It had an obvious secular objective, and it did not illicitly advance religion. Though the statute referred to religious organizations, they were merely among many community players to be brought in for the education of children. Even though funds sometimes went directly to religious organizations, this had been allowed in other cases, such as aid to Catholic hospitals, or aid to nominally religious colleges. Looking at the record, Rehnquist did not think most grant recipients could be described as ‘pervasively sectarian’ in the way that parochial elementary schools were. Although the law did not specifically prohibit teaching religious doctrines, Rehnquist trusted grant recipients to abide by the Constitutional separation of church and state, and noted that recipients had to check in with the government from time to time.

Rehnquist summarily added that these check ins would not result in excessive entanglement – the final, much maligned Lemon prong. Finally, he turned to the as-applied challenge, and said that a remand would be necessary to determine which grant recipients had actively taught religious doctrines. O’Connor, in concurrence, denied that the Court was retreating from a strong commitment to the Establishment clause. Kennedy, joined by Scalia, noted that even ‘pervasively sectarian’ organizations should be able to receive grant money so long as they refrained from using it to teach religious doctrines.

Blackmun, joined by Brennan, Marshall, and Stevens, wanted to strike the law down altogether. He felt that discrete violations on the record should be considered in a facial challenge, and that any law which so easily allowed for the smuggling in of religious teaching should be struck down. He argued that the majority found, without proper analysis, that most recipients were not ‘pervasively sectarian,’ and that the record suggested the opposite. He noted that the Court had usually required much stronger safeguards against money flowing to any religious teaching, and that the statute’s lack of a ban on religious teaching was inexcusable. He contended that the education of young children was much different than a hospital healing the sick, or even a college teaching less impressionable minds. Finally, he showed that policing grant recipients to ensure that no religious doctrines were imparted would certainly involve excessive entanglement.

Here is another case where the dissent was definitely right on what the various precedents had established, but I would still vote with the majority because those precedents are wrong and stupid. I wish the majority had the courage to overrule the entire Everson-Lemon line, but they didn’t. Instead, we got yet another confusing and contradictory twist in the miserable world of Establishment clause jurisprudence – albeit one that at least had the correct final result.

Ever since Everson, the Court’s liberals have displayed a fierce, sickening, and (I dare say it) religious sort of mania in Establishment clause cases. Here, for example, Blackmun speaks of the Court’s duty to show “unwavering vigilance” in any cases potentially involving government money going to religious activity (just try to imagine a liberal Justice talking about “unwavering vigilance” with respect to, say, the Interstate Commerce clause). He exhorts the reversed District Court judge to “not grow weary” on remand, after all his noble “labors thus far.” Liberals don’t use this really creepy tone for any clause other than the Establishment clause. They despise the God of Israel with a passion, and despise the very thought that even a single cent of tax money might accrue, however remotely or indirectly, to His honor.

The AFLA is one of those very rare pieces of government legislation that truly fights evil. There is not a single social phenomenon more destructive to contemporary civilization than premarital sex. When it comes to generating more abortions, more divorces, more poverty, more sexual assaults, more broken hearts, and more souls turned away from God, nothing else even comes close. For decades, our culture has been poisoned unto death by the lie that sex before marriage is no big deal. The AFLA was one of the few initiatives which actually fought back against the lie.

Braswell v. United States

487 U. S. 99

June 22, 1988

Randy Braswell was served with a subpoena to turn over records of a corporation which was basically his alter ego. Braswell argued that producing the requested documents would be a testimonial act, and that it might incriminate himself. He therefore sought to avoid producing the documents under the Fifth Amendment. At a minimum, he said, he had to be afforded immunity for the production. The government responded that under the collective entity rule, he could not assert such a privilege.

The Supreme Court ruled 5-4 that the Fifth Amendment could not be invoked. Rehnquist admitted that the Court had previously found that producing documents was testimonial, but that this rule only applied when the documents of a sole proprietorship were sought. When the documents of a corporation were sought, the custodial of the documents acted as an agent of the corporation – in other words, Braswell would not be asserting a privilege for himself, but for the corporation as a whole. And under a long line of cases, the collective entity rule had been established that corporations could not defeat subpoenas by invoking Fifth Amendment rights.

A case called Curcio where the Fifth Amendment protected a custodian from orally disclosing the location of documents was distinguished, because it involved verbal testimony. Rehnquist said that requiring a grant of immunity was a bad idea because it would make prosecuting certain crimes more difficult. Finally, he added a disclaimer that the government could never inform a judge or jury of the custodian’s personal identity.

Kennedy, joined by Brennan, Marshall, and Scalia, dissented. Everyone knew that the production of documents was a form of testimony, and Court precedents had held as much. Furthermore, Curcio could not be adequately distinguished because all testimony, verbal and non-verbal, gets Fifth Amendment protection. While corporate documents could not be shielded by the Amendment, none of the previous collective entity cases had held that the act of production itself was not self-incrimination. Kennedy said the majority stretched agency law too far, and that the government seemed to have targeted Braswell by the subpoena far more than his corporation. He also noted that the majority’s final disclaimer seemed to have no legal foundation. With respect to the majority’s public policy concerns, Kennedy replied that the Constitution’s text trumped them.

Kennedy eviscerated the majority opinion. It’s shameful that Rehnquist got five votes for his bit of pro-prosecution activism. It’s no fun to see made up rights, with no basis in the Constitution get recognized in some cases, and then see the actual text and substance of the Constitution ignored in others.

Ross v. Oklahoma

487 U. S. 81

June 22, 1988

When an Oklahoma court failed to excuse a potential juror from a capital sentencing panel, as required by Witherspoon, the defense lawyer eliminated this potential juror through a peremptory challenge. The defense ultimately used up all its peremptory challenges. When a death sentence was returned, Ross argued that it violated the Eighth Amendment because he lost one of his peremptory challenges to correct the court’s erroneous decision not to exlude an unqualified juror. Under last year’s Gray ruling, any errors that affected jury composition required overturning a death sentence.

The Court ruled 5-4 that the death sentence could stand. Rehnquist stressed that the final jury was conceded to be impartial and free of unqualified jurors, and that such a jury’s decision deserved the Court’s deference. With some unease, Rehnquist distinguished Gray as follows: “We decline to extend the rule of Gray beyond its context: the erroneous “Witherspoon exclusion” of a qualified juror in a capital case. We think the broad language used by the Gray Court is too sweeping to be applied literally, and is best understood in the context of the facts there involved.” Finally, Rehnquist observed that losing one peremptory challenge was no great loss, because states could vary the precise amount of peremptory challenges, because Oklahoma law explicitly noted that they could sometimes be used to strike jurors for cause, and because Court precedents had allowed states to impose various limits on their usage.

Marshall, joined by Brennan, Blackmun, and Stevens, would have none of this. Gray controlled the case, plain and simple. Gray said that any error which could potentially affect the final jury composition required overturning the death sentence. Because Ross might have used his wasted peremptory challenge on another juror, the jury’s composition was potentially affected. Marshall found the majority’s grounds for distinguishing Gray totally unconvincing. He also said that peremptory challenges, once given, should be seen as entitlements that the state could not force the sacrifice of in order to correct a judge’s error.

This is one of those instances where the majority reached the right result for the wrong reasons. Gray obviously controlled, and could not be adequately distinguished. The majority should have had the courage and intellectual honesty to overrule it. Instead, they were a bunch of intellectually dishonest cowards, and they did the ‘we confine the reach of this precedent to its immediate facts’ thing. Screw that – Gray deserved to be overruled. In my final roundup of the 1986-1987 term, I even rated it as one of the four worst decisions of the entire year.

The Supreme Court never wants it to be thought that previous decisions can be overruled entirely on the basis of membership changes. This is, I’m fairly certain, the key to the majority’s intellectual dishonesty. Powell was gone, and Kennedy was his replacement. Gray would have been overruled based on a mere membership change. Yet again, here is a creepy prefiguring of Planned Parenthood v. Casey, in which Roe was reaffirmed, in part, because of the worry that overruling it would be accounted wholly to membership changes.

Supreme Court of Va. v. Friedman

487 U. S. 59

June 20, 1988

Virginia allowed lawyers licensed in other states to skip the Virginia Bar Exam if they lived in Virginia. Myrna Friedman, licensed by Illinois and DC, had worked in Virginia for many years, but lived across the river in Maryland. She applied for admission without the Bar Exam, but was denied because of her Maryland residency. Friedman charged that this rule violated the Privileges and Immunities clause, especially because a recent Supreme Court ruling prohibited states from denying non-residents a law license if they passed the state bar exam.

The Court ruled 7-2 that Virginia could not enforce its rule. Kennedy claimed that the Privileges and Immunities clause protected the rights of citizens to practice law regardless of state residency, and that laws burdening this were suspect. That Friedman could still be licensed by passing the Virginia Bar Exam was irrelevant, because it was a needless extra burden. Kennedy was unimpressed by Virginia’s argument that the rule was necessary to ensure the familiarity with Virginia law of those who got licensed. Friedman was clearly familiar with Virginia law. In any event, a different rule that Virginia lawyers had to practice in Virginia was sufficient for all the ends the state wished to achieve.

Rehnquist, joined by Scalia, dissented. He refused to accept that requiring residency for a law license violated the Privileges and Immunities clause (and he referred to a previous dissent for a more in depth explanation of why). He concluded that the Court’s dumb ruling could very well encourage Virginia to eliminate all reciprocity, and thus require all applicants to take the Bar Exam.

Supreme Court activism might be most blatantly visible not when it’s applied toward an evil end like abortion, but when it’s applied toward a merely dumb end like bar admission. When activism serves an evil cause, it’s easy to care more about the terrible real world effects of the decision than the reasoning behind the decision itself. Conversely, when activism is employed to reach a stupid but basically harmless result, the activism sticks out far more prominently.

Bendix Autolite Corp. v. Midwesco Enterprises, Inc.

486 U. S. 888

June 17, 1988

Ohio had a 4 year statute of limitations on contract disputes. But that time limit was tolled if the corporation being sued was out-of-state, unless the corporation had a designated agent in Ohio. When an Illinois corporation without an Ohio agent was sued six years after a contract, it argued that Ohio’s strange law discriminated against interstate commerce. It forced a choice between being subject to Ohio’s general jurisdiction, or being subject to contract disputes without any time limit.

The Supreme Court ruled 8-1 that Ohio was violating the Commerce clause. Kennedy said that being subject to general Ohio jurisdiction was a significant burden, and that not being able to take advantage of a statute of limitations was another significant burden. Because only out-of-state corporations had to choose between these two burdens, and because there was little compelling interest for Ohio’s law, there was clear discrimination against interstate commerce, and the law had to go.

Scalia concurred in judgment. He had difficulty assessing just how burdensome the alleged burdens were. He absolutely hated the ‘balancing’ that the Supreme Court did in state commerce cases. “[T]he scale analogy is not really appropriate, since the interests on both sides are incommensurate. It is more like judging whether a particular line is longer than a particular rock is heavy.” He would leave all balancing to Congress, where it belonged. Nonetheless, he did agree that in this case Ohio’s law did blatantly discriminate against foreign corporations.

Rehnquist filed a cryptic dissent, which argued that Ohio’s law had some non-obvious similarities to other state laws that the Supreme Court had upheld. His argument is a bit too subtle and underdeveloped for me to fairly evaluate it.

Liljeberg v. Health Services Acquisition Corp.

486 U. S. 847

June 17, 1988

Judge Collins of Louisiana was determining who owned a hospital. While this case was going on, Loyola was looking to sell land to the hospital, though only if Liljeberg won the suit (as he eventually did). Judge Collins was on Loyola’s board of trustees, but he was unaware of all this at the time. When these weird connections came out afterward, the losing party moved to vacate the ruling of Judge Collins, on the ground that he violated a federal law about judges recusing themselves when they have a stake in the outcome. Collins argued that he didn’t know about the conflict of interest until afterward, so there was no harm.

Unfortunately, the Supreme Court disagreed in a terrible 5-4 ruling. Stevens said that the federal law on disqualification was meant to protect citizens from even the appearance of impropriety on the part of judges. Thus, even if a judge did not know about a conflict of interest, they had a duty to recuse if they should have known. Based on his attendance at several trustee meetings, Collins clearly should have known, and at a minimum he should have personally tried to vacate his ruling the day it all came to his attention. Because the obliviousness of Judge Collins was so staggering, Stevens agreed with the lower court that the proper remedy was vacating the ruling entirely – something federal law only allowed in extreme cases.

Rehnquist, joined by White and Scalia, dissented from this nonsense. When a judge really wasn’t aware of any conflict of interest until afterward, there was no harm done. Furthermore, “[t]o hold that disqualification is required by reason of facts which the judge does not know, even though he should have known of them, is to posit a conundrum which is not decipherable by ordinary mortals.” Rehnquist was equally unimpressed by the monumental overreaction of ruling that this mistake was extreme enough to warrant vacating the ruling nearly a year after the fact. O’Connor said she agreed of most of Rehnquist’s points, but left open the possibility of a new trial if the lower courts really thought it was necessary.

I hate judges recusing themselves over stupid minutia like service on a board of trustees, or a tiny amount of stock owned in a broad portfolio. It can often lead to tie votes that waste everyone’s time and money – you’re pleasing an unreasonable jerk who will say that a Justice was just voting to protect their interest in three shares of stock, but at way too high a cost. At one point, Stevens sententiously intones that “people who have not served on the bench are often all too willing to indulge suspicions and doubts concerning the integrity of judges.” True enough, but we don’t have those doubts over specious crap like stock portfolios or trustee boards.

Let’s be blunt about it: 99% of the time, our “suspicions and doubts” are based on the judge’s political leanings and biases. If Stevens was being honest, he’d admit that the greatest appearances of partiality come when the judge apparently votes in line with his political preferences. How ironic that political leanings are the reason a judge is least likely to recuse himself to avoid the appearance of partiality! At any rate, when Justices like Brennan and Marshall are (completely by coincidence, I’m sure) voting for criminal defendants, unions, and racial minorities in nearly every case, it’s hard for me to take complaints about being on a board of trustees seriously.

This is the very first case of Kennedy being the swing vote and betraying the other conservatives. Sadly, it would not be the last case. In fact, this ruling contains some creepy prefiguring of Planned Parenthood v. Casey. The majority worries about the judge’s appearance of impropriety more than the presence of actual impropriety. Four years later, a majority composed of largely the same Justices ruled that Roe must be reaffirmed, because whether or not it was incorrectly decided, public perception of the judiciary would be undermined by overruling it. In other words, appearance matters more than the actual facts and legal substance – truly a horrifying perversion of justice and legal priorities!

Webster v. Doe

486 U. S. 592

June 15, 1988

The Director of the CIA fired an employee upon finding that his homosexuality was a danger to the agency. The employee charged that this both violated the Administrative Procedure Act (APA), and a grab bag of Constitutional protections. The CIA argued that the statutes governing the CIA gave the director full, and unreviewable discretion to dismiss employees when he finds cause.

The Court ruled 8-0 that the firing could not be challenged on APA grounds, but held 6-2 that a Constitutional challenge could at least be entertained (Kennedy did not participate). Rehnquist said that for an APA challenge to firings, the laws and regulations relevant to the agency need to have some meaningful standards. The CIA, by its governing statutes and policies, really did seem to give the Director practically unreviewable discretion in personnel decisions. Rehnquist did not think the governing statute clearly preempted Constitutional challenges though. A remand would be necessary to get the record developed further on just what the exact Constitutional issues were.

O’Connor dissented from the Constitutional portion. She felt that the CIA’s business was too top secret for a Constitutional challenge to a firing to be appropriate. Scalia concurred in judgment on the APA portion, but he thought the majority set the bar too high in how few governing policies there needed to be before the Court would accept unreviewable agency discretion. He strongly dissented about the Constitutional portion. There was no statutory evidence that the Director’s unbounded discretion was to exclude Constitutional issues. Indeed, Scalia claimed the right to Constitutional challenges should not be lightly presumed. The decision could open Pandora’s box on a number of fronts – would it mean that the president could not dismiss a cabinet member because he disliked the cabinet member’s religion?

While I’m not too upset about the ruling, Scalia is definitely more tightly reasoned about the Constitutional issue. I also enjoyed a digression of his, where he debunked the notion that Constitutional safeguards are necessarily more important or sacred to a person than other safeguards. “A citizen would much rather have his statutory entitlement correctly acknowledged after a constitutionally inadequate hearing, than have it incorrectly denied after a proceeding that fulfills all the requirements of the Due Process Clause.” This is a great, and usually unappreciated point. The legal system does care about stupid procedures in the Bill of Rights far more than actual injustices.