Day. Okay, that's it -- almost nine, time to go home. Who sez guv'mint workers slack off?

A Horse is a Horse, Of Course.

Regina v. Ojibway
(1965) 8 Crim.L.Q. 137-139 (Canada)

Blue, J.: - This is an appeal by the Crown by way of a stated case from a decision of the magistrate acquitting the accused of a charge under the Small Birds Act, R.S.O., 1960, c.724, §2. The facts are not in dispute, Fred Ojibway, an Indian, was riding his pony through Queen's Park on January 2, 1965. Being impoverished, and having been forced to pledge his saddle, he substituted a downy pillow in lieu of the said saddle. On this particular day the accused's misfortune was further heightened by the circumstance of his pony breaking its right foreleg. In accord with the Indian custom, the accused then shot the pony to relieve it of its awkwardness.

The accused was then charged with having breached the Small Birds Act, §2 of which states:

2. Anyone maiming, injuring or killing small birds is guilty of an offence and subject to a fine not in excess of two hundred dollars.

The learned magistrate acquitted the accused holding, in fact, that he had killed his horse and not a small bird. With respect, I cannot agree.

In light of the definition section my course is quite clear. Section 1 defines "bird" as "a two legged animal covered with feathers". There can be no doubt that this case is covered by this section.

Counsel for the accused made several ingenious arguments to which, in fairness, I must address myself. He submitted that the evidence of the expert clearly concluded that the animal in question was a pony and not a bird, but that is not the issue. We are not interested in whether the animal in question is a bird or not in fact, but whether it is one in law. Statutory interpretation has forced many a horse to eat birdseed for the rest of its life.

Counsel also contented that the neighing noise emitted by the animal could not possibly be produced by a bird. With respect, the sounds emitted by an animal are irrelevant to its nature, for a bird is no less a bird because it is silent.

Counsel for the accused also argued that since there was evidence to show the accused had ridden the animal, this pointed to the fact that it could not be a bird but was actually a pony. Obviously this avoids the issue. The issue is not whether the animal was ridden or not, but whether it was shot or not, for to ride a pony or a bird is of no offence at all. I believe counsel now sees his mistake.

Counsel contends that the iron shoes found on the animal decisively disqualify it from being a bird. I must inform counsel, however, that how an animal dresses is of no concern to this court.

Counsel relied on the decision In Re Chicadee, where he contends that in similar circumstances, the accused was acquitted. However this is a horse of a different colour. A close reading of that case indicates that the animal in question there was not a small bird, but in fact, a midget of a much larger species. Therefore, that case is inapplicable to our facts.

Counsel finally submits that the word "small" in the title Small Birds Act refers not to "Birds" but to "Act", making it the Small Act relating to Birds. With respect, counsel did not do his homework very well, for the Large Birds Act, R.S.O. 1960, c.725, is just as small. If pressed, I need only refer to the Small Loans Act R.S.O. 1960, c.727 which is twice as large as the Large Birds Act.

It remains then to state my reason for judgment which, simply, is as follows: Different things may take on the same meaning for different purposes. For the purpose of the Small Birds Act, all two legged, feather covered animals are birds. This, of course, does not imply that only two-legged animals qualify, for the legislative intent is to make two legs merely the minimum requirement. The statute therefore contemplated multi-legged animals as well. Counsel submits that having regard to the purpose of the statute only small animals "naturally covered" with feathers could have been contemplated. However, had this been the intention of the legislature, I am certain that the phrase "naturally covered" would have been expressly inserted just as "Long" was inserted into the Longshoreman's Act.

Therefore, a horse with feathers on its back must be deemed for the purposes of this Act to be a bird, and, a fortiori, a pony with feathers on its back is a small bird.

Counsel posed the following rhetorical question: If the pillow had been removed prior to the shooting, would the animal still be a bird? To this let me answer rhetorically: Is a bird any less of a bird without its feathers?

Appeal allowed.

Busy Day, Busy Weeks. Sorry, I was hoping to go back to last afternoon's essay on the Atkins decision and make a few revisions, tighten it up a bit. I haven't been able to do so. We have had some out-of-town visitors and I've been pretty busy at work. We had a very nice time going out for dinner with our friends -- it was good to see them again. Work has been busy. I got in at 6 this morning, it's now 7:20 and I'm not sure when I'll be done. This weekend my parents are up and we've got lots of family stuff going on. Then, for the next two weeks or so, I'll be pretty busy at work, in fact it's not likely I'll be at a PC, so only updates in the evening. Look to Eugene for analysis of the Zelman case. It has to be released next week. Opinions on Monday and then the remainder should be out by the end of the week. I think there are about 10 cases pending. I'll leave a fun thing that I received while I was in law school for your enjoyment.

Oh Well. USA loses 1-0. They had 11 shots, 6 on goal. Oliver Kahn had a good game in goal for Germany. Glückwünsche zur Deutschen Mannschaft.

Executing the Retarded. I'm pretty strongly opposed to the death penalty. Nevertheless, I don't really buy the Court's arguments for its flip-flop on this case. In dissent, Justice Scalia writes: "Seldom has an opinion of this Court rested so obviously upon nothing but the personal views of its members." I think he's right.

The Court builds its argument on the noxious Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion) (Warren, C. J) passage: "The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Following this post-modern standard, the Court said, well when we upheld the execution of persons of diminished capacity 13 years ago, it was because the heathen hadn't sufficiently evolved to reject the death penalty in these cases, now they have. It transforms what should be an objective standard into a very subjective one.

This ruling really ticks me off because it just illustrates how totally groundless the Court has become. Here the Court basis for its decision is essentially that it violates their own standard of morality or decency. They follow this with whatever straws they can grasp in support of their beliefs. It is sickly amusing that the opinion was written by Justice Stevens who relies in part on the consensus of the "religious communities" on this issue when in a prior abortion case he issued a separate concurrence noting that if there was a consensus of religious communities the restriction violated the Establishment clause.

And speaking of abortion, Roe v. Wade had a discussion of religious opinions before throwing up the hands and saying who knows.

Similarly, in Romer v. Evans 134 L. Ed. 2d 855, the Court struck down a decency standard that was agreed to by a majority of the people voting. I suppose the majority of people in Colorado in that case were not "mature."

Which leads me to my final rant -- the assumption of our own temporal superiority. Those of us living in this time are more decent than Tom Brokaw's Greatest Generation, according to the Court.

A few other notes: (1) Trop v. Dulles was not a death penalty case. At issue was desertion from the military during a time of war, a crime punished up to and including death (indeed, there is a small cemetary in Hawai'i that has the graves of persons shot during WWII). Trop deserted and was convicted and stripped of his citizenship. CJ Warren, in his plurality opinion found this to be cruel and unusual. His arguments for that case were not persuasive and are still not.

(2) In Scalia's dissent he identifies new members of the discrete and insular minority club (the preceeding is my language):

I suppose a similar “special risk” could be said to exist for just plain stupid people, inarticulate people, even ugly people.

In sexual harassment cases, I've pointed out that there is a problem with prosecuting someone because he or she is a lame joke teller (i.e. inarticulate), when a "good" joke teller can get away with egregious sexual harassment if s/he has a funny style. Scalia's dissent points out the majority's position would support that contention.

(3) In footnote 21, the Court looks to "religious communities" and "the world community" for support. Has Stevens been reading too many Tim LaHaye books -- is he a Nicolae fan?

Update See this piece on NRO by Richard W. Garnett. [Thanks to Eugene Volokh]

Another update: Consider this man's opinion:

Al Gore . . .knows that many Americans have a swelling sense that our standards of decency and civility have eroded.

That was Joe Lieberman at the Democratic Convention on Wendesday, August 17, 2000.

More. See Jane Galt, Peter Sean Bradley, Orrin Judd, and here (soon).

Supremes. First case is the Utah challenge to the Census and apportionment. Utah loses, North Carolina (which would've lost a seat) wins. The case, Utah, et al. v. Evans, Secy of Commerce, was a challenge to the Department of the Census' use of a statistical method known as "imputation." As it's name implies, this is where Census employees impute the values of one household to another. Specifically, when census-takers are unsuccessful in gathering data from a particular household, they enter data based on a neighboring household of similar size. At issue for the 2000 census, was that imputation added around 32,000 people to North Carolina’s population, while it accounted for only about 5,400 people in Utah. North Carolina gained a seat in the House of Representatives, while Utah did not. Opinion by Breyer, by Chief Justice William Hubbs Rehnquist [interesting!] and Justices John Paul Stevens, David H. Souter, and Ruth Bader Ginsburg. The AP notes that "Utah came within 900 people of getting an additional House seat..."

Second Case. HMO's. The Supremes upheld a state law that gave patients a right to a second opinion. The patient in the case sought coverage from her HMO under a state law, filing the case in state court. The HMO moved the suit to federal court, pursuant to the Employee Retirement Income Security Act ("ERISA"), a federal employee benefits law, preempts the state law.
The Court, in a 5-4 split, said that there was no pre-emption. Souter writing for the majority -- in other words, don't expect me to give a report on this. I didn't get much sleep last night and the last think I need is a Zzzzouter opinion.

Third Case. The Court, 6-3, ruled that executing the mentally retarded is cruel and unusual. [Don't have the breakdown yet, but I'll bet the two Clinton appointees weren't in the minority. Ironic, since Clinton the campaigner returned from his campaign to execute Ricky Rector who had asked the guards to save his pie for him from his last meal and he would eat it later. See Christopher Hitchens Clinton and Ricky Ray Rector in the 3/2/92 issue of the Nation] Okay, the breakdown is available now. Stevens for the majority, Rehnquist, Scalia, and Thomas in the minority. Look to see if there are concurring opinions by the Justices who switched explaining why.

Fourth Case. The Buckley Amendment -- educational privacy law -- doesn't grant students a private right of action. If I remember correctly, this was the last case argued in the term and it was argued by Bush circuit court nominee John Roberts for Gonzaga, the prevailing party. Breakdown 7-2, CJ for majority, and Stevens, joined by Ginsburg, in dissent.

Fifth Case. Christopher v. Harbury. Harbury's husband was a comandante in a Guatemalan rebel group. He was held as a prisoner and eventually killed. Harbury contends the CIA knew that he was alive at a time he was in fact alive, but told her he was dead. She sought damages from the US contending it had a duty to disclose to her. What made this case unique is that Harbury is an attorney and she argued the case on her behalf. The Court unanimously rejected Harbury's argument (and was pretty firm about it, see III-B of the opinion).

Sixth Case Also a pre-emption case. Ginsburg for the majority, O'Connor joining a Scalia dissent (dogs and cats, living together!). Ours Garage in Columbus Ohio was cited for failing to maintain a permit for its tow-truck, as required by local ordinance. The Garage, in its defense, claimed a provision in the Federal Interstate Commerce Act (ICA) preempted the city’s ordinance. Both the District Court and the 6th Circuit agreed with the Garage, but the Supremes did not.

But no Zelman [Here's a link for the lower court decision in Zelman].

Everquest. If you play this, you might want to give my nephew's Everguide a look. You can get it here or here.

Brownies. I wish I knew who wrote this -- I got it from my mom by e-mail:

A mother of 3 teenage children had made the family rule that the teens could not attend PG-13 or R rated movies. The 3 teens wanted to see a particular popular movie that was playing at local theaters. It was rated PG-13.

The teens interviewed friends and members of their family's church to find out what was offensive in the movie. The teens made a list of pros and cons about the movie to use to convince their Mom that they should be allowed to see it.

The cons were that it contained ONLY 3 swear words, the ONLY violence was a building exploding (and you see that on TV all the time they said), and you actually did not "see" the couple in the movie having sex - it was just implied sex, off camera.

The pros were that it was a popular movie -- a blockbuster. Everyone was seeing it. If the teens saw the movie then they would not feel left out when their friends discussed it. The movie contained a good story and plot. It had some great adventure and suspense in it. There were some fantastic special effects in this movie. The movie's stars were some of the most talented actors in Hollywood. It probably would be nominated for several awards. Many of the members of their Christian church had even seen the movie and said it wasn't "very bad".

Therefore, since there were more pros than cons the teens said they were asking their Mom to reconsider her position on just this ONE movie and let them have permission to go see it.

The mother looked at the list and thought for a few minutes. She said she could tell her children had spent some time and thought on this request. She asked if she could have a day to think about it before making her decision. The teens were thrilled thinking; "Now we've got her! Our argument is too good! Mom can't turn us down!" So, they happily agreed to let her have a day to think about their request.

The next evening the mother called in her three teenagers, who were smiling smugly, into the living room. There on the coffee table she had a plate of brownies. The teens were puzzled.

The mother told her children she had thought about their request and had decided that if they would eat a brownie then she would let them go to the movie. But just like the movie, the brownies had pros and cons.

The pros were that they were made with the finest chocolate and other good ingredients. They had the added special effect of yummy walnuts in them. The brownies were moist and fresh with wonderful chocolate frosting on top. She had made these fantastic brownies using an award-winning recipe. And best of all, the brownies had been made lovingly by the hand of their own mother.

The brownies only had one con. She had included a little bit of a special ingredient. The brownies also contained just a little bit of dog poop. But she had mixed the dough well - they probably would not even be able to taste the dog poop and she had baked it at 350 degrees so any bacteria or germs from the dog poop had probably been destroyed.

Therefore, if any of her children could stand to eat the brownies which included "just a little bit" of undesirable poop and not be affected by it, then she knew they would also be able to see the movie with "just a little bit" of smut and not be affected.

Of course, none of the teens would eat the brownies and the smug smiles had left their faces. Only Mom was smiling as they left the room.

Now, when her teenagers ask permission to do something she is opposed to, the mother just asks, "Would you like me to whip up a batch of my special brownies?"

Comments. Since I got the comments feature, I'm having a very difficult time amending my links and getting those changes to stick. Has anyone else had this problem? Any ideas on how to overcome it? Also, I like the comments feature, but will probably make some changes in the near future.

Signs and Sayings. There's a sign on the coffee machine here at work: " effective - don't use" It looks like the "d" is missing.

Last night while I was getting my 3 year old son ready for bed he told me: "I know the name for poop."
Me: "Uh, okay. Uh, poop?"
Son: "No, I mean I know it's middle name."
Me: "____" (being speechless, I didn't ask. That's one of the things you learn as an attorney.)

Supremes Strike Down McCain-Feingold. Reading the Supreme Court's latest free speech decision, the Straton case, I was struck by how strong and broad the language of the opinion is. The second sentence lays it out: "Through this facial challenge, we consider the door-to-door canvassing regulation not only as it applies to religious proselytizing, but also to anonymous political speech and the distribution of handbills." The Village of Straton adopted an ordinanace requiring registration prior to engaging in door-to-door speech. Those who registered were given a permit -- no fee was charged and the local government made no determination as to whether the speech was approved. In other words, it was basically a notice requirement with a permit being issued after notice.

The Court, using pretty sweeping language struck down this ordinance:

It is offensive–not only to the values protected by the First Amendment, but to the very notion of a free society–that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so. Even if the issuance of permits by the mayor’s office is a ministerial task that is performed promptly and at no cost to the applicant, a law requiring a permit to engage in such speech constitutes a dramatic departure from our national heritage and constitutional tradition.

The more I read this, the more I think that the Court is sending our politicians, most noteably John McCain and Russell Feingold a strong message that their so-called campaign finance reform measures are patently unconstitutional.

After the passage quoted above, the Court goes on to mention three broad areas that are unconstitutional, on their face: (1) Any restriction on anonymity ("First, . . . there are a significant number of persons who support causes anonymously.") (2) Obtaining a permit prior to engaging in speech ("There are no doubt other patriotic citizens, who have such firm convictions about their constitutional right to engage in uninhibited debate in the context of door-to-door advocacy, that they would prefer silence to speech licensed by a petty official."), and (3) Restrictions that impede spontaneous speech ("Third, there is a significant amount of spontaneous speech that is effectively banned by the ordinance.")

McCain-Feingold, with its restrictions and bans on political speech in the form of a 30 or 60 blackout period in advance of an election, its burdensome disclosure requirements, and its registration and permit requirements, is clearly unconstitutional and will be quickly quashed by the Court.

Update [Via Instapundit] The WaPo's lead editorial today speaks in favor of the Court's decision noting:

Yet the court rightly rejected even this minimal regulation. Requiring people to register in order to speak, as Justice Stevens points out, renders certain types of spontaneous speech illegal. . . More fundamentally, such a licensing scheme insinuates the government -- however minimally -- into the exchange of ideas between individuals. The government needs a compelling reason to burden such communications, and the reasons Stratton offers -- protecting privacy and preventing con artists from preying on residents -- don't remotely justify the intrusion. It isn't the place of government to protect people from being irritated by the religious or political convictions of those among whom they live.

Yeah! The Post is right on this -- so why doesn't it agree when it comes to McC-F? Simple, it likes the shift of power from the people to the "professional journalists."

Strange World. Missouri Episcopal bishop George Wayne Smith attacks the head of the Southern Baptist Convention and defends the Islamic faith. According to the news article, Bp. Smith was provoked to call a news conference which was held "before the altar in Christ Church Cathedral" because Rev. Jerry Vines, the former president of the SBC, told a conference of pastors that "Islam is not just as good as Christianity." Okay -- not sure what Vines meant by that, but it seems to me that if you are a minister in a Christian church of any kind, you are because you implicitly believe that your church is better than another. For example, the article notes that Bishop "Smith, who was baptized in a Southern Baptist congregation as an adolescent [] later converted to the Episcopal Church while a student at Baylor University, a Baptist college in Waco, Texas." So, in the Bishop's case, he believed that the Baptist denomination just wasn't as good as the Episcopal denomination. That's not a big deal, is it?

The article goes on to note that Vines "went on to call Mohammed 'a demon-possessed pedophile' in reference to the fact that the prophet's 12th wife was nine years old when they were betrothed." To which Bp. Smith responded: "To equate Mohammed's marriage with pedophilia is horrific." The article further notes Smith, repeating earlier statements from the news conference "that the marriage was not consummated until the girl was of age. He added that betrothals of children were common in Mohammed's day as a way to unite families. He explained that such customs are not practiced by Muslims today."

I'm concerned, first of all, that the Bishop is using the altar of a cathedral as a place to hold a news conference. Second, I'm troubled that the Bishop doesn't have a problem with a guy having 12 wives. Vine's statement seems to be intemperate, yes, but I'm not sure it warranted Bishop Smith's counter-attack.

Update In the comments Brian Jones writes "You ascribe a type of gamesmanship to church choices that I believe is specious." I would normally address a response to a comment in the comments, except that he is quite right. Please read his full comment. I knew that there was something I didn't like about this when I wrote it. My analogy is wrong; comparing choices among Christian denominations with the differences between Islam and Christianity is specious. If you choose to follow Christ, you reject all other religions, but you are free to follow Him within any of the denominations or not. If you follow Mohammed, you reject the divinity of Christ.

Toxic Sludge Good. The Washington Times today has a memo from the EPA which states that the dumping of toxic sludge by the Army Corps of Engineers is good for the fish in the area. The EPA writes the sludge "actually protects the fish in that they are not inclined to bite (and get eaten by humans) but they go ahead with their upstream movement and egg laying."

Earthquake in Indy? This afternoon -- I wonder how close this is the New Madrid?

A magnitude 5.0 earthquake in SOUTHERN INDIANA has occurred at: 38.07N 87.68W Depth 5km Tue Jun 18 17:37:13 2002 UTC. This is just 10 miles from Evansville.

Update Here is a link.

Last Thought. When I was a young boy, and my father was stationed in Taiwan, I had an opportunity to see Madame Chiang Kai-shek (or Soong Mei-ling) she was very well respected from at least the 1940's through the 1970's. In 1943, she addressed the United States Congress. It's my understanding that she's still alive.

Michigan School Choice is covered in this article.

Idle Thought 4. As Italy learned today, the prevent defense never works. The best defense is offense.

Idle Thought 3. Was the first true distortion of time and space the eternal 3 seconds that took place in Munich in 1972? It seemed to go forward, then back, then forward, then back, and finally forward again. Has Stephen Hawking written about this?

Idle Thought 2. Why are so many of the great American writers of the last century from the South? Why are so many of the great folk singer/poets from Canada? (or in Bob Dylan's case, near Canada.)

Idle Thought 1. Is there any significance to the Volokh Conspiracy's Juan Non-Volokh e-mail acronym being jnov? For human beings (i.e. non-lawyers) a JNOV means "judgment not withstanding the verdict" a situation where the Judge basically overrules the judgment of the jury.

Movies. A few notes on some recent movies. First, The Rookie, which the family took in on Father's Day, may be the best baseball movie of all time. [ESPN list]

Second, read Charlie Murtaugh's thoughts on Tora, Tora, Tora (which too many have panned, IMHO), Pearl Harbor, 9.11 and intelligence failures. I wouldn't go so far as to equate the FDR-debunkers with Cynthia McKinney (one, amateur historian Daryl Borgquist, I worked with for 2 or 3 years, is a really great guy). The incident that always got me was the Opana radar report.

Third, my daughter and I watched Cromwell on Friday night -- it was the first time I saw it since it came out in 1970 or 1971. We both enjoyed making Star Wars references to Alec Guiness ("use the force") who played King Charles I. The movie is a good one, although there are a number of historical flaws both glaring and small. Nonetheless, it pretty accurately portrays the conflict between a democracy and a monarchy -- how do you overthrow a monarch without being consumed by the same chaos yourself. With Guiness in the movie, I kept thinking that George Lucas should've watched this movie before doing Phantom Menace and Attack of the Clones. He tries to set up a similar contest but fails miserably, because he doesn't know what's wrong with the empire and what's right with the Senate. For more extensive criticism along these lines, see Jonathan Last's essay in the Weekly Standard.

Fourth, casting Matt Damon as the lead in the Bourne Identity doesn't seem right.

Fifth, I'm really looking forward to the Minority Report -- I think it will actually surpass the Philip K. Dick short story which is very imaginative, but too truncated. BTW, I just re-read Dick's story and came away amused at his comparing the three pre-cogs to computers where one might be in error, and if two are in conflict, you don't know which is right, but if two of the three computers agree, you can rely on the majority report. Of course, if the three computers are running the same programs on the same data, they won't disagree. See also, GIGO. Plus it was amusing to see our future people lighting up pipes and cigarettes like they would in the 1950's.

Update: "Spielberg's sharpest, brawniest, most bustling entertainment since Raiders of the Lost Ark"

— RICHARD CORLISS, Time Magazine

Ordered Liberty. Supreme Court Justice-in-waiting (my not-so-humble opinion) Eugene Volokh has a series of interesting discussions about the legality and morality of forced confessions running over the past week. In the latest, he asks

But if the dirty bomb / nuclear bomb / smallpox vial is hidden in Los Angeles, is it really the case that the Constitution prohibits the use of truth serum on a suspect? Let's say that we conclude that outright physical torture is just not allowed, no ifs, ands, or buts -- perhaps that's right. Are we really prepared to say the same even as to truth serum?

I say no (and, it should be noted, that Eugene's hypothetical imagines our truth serum is effective and reliable). For this, I would draw on Justice Robert Jackson's dissent in Terminiello v. City of Chicago (all the way at the end/bottom):

This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

See also, Justice Arthur Goldberg in Kennedy v. Mendoza-Martinez (1963) ("...while the Constitution protects against invasions of individual rights, it is not a suicide pact.")

In short, by continuing the exclusion of evidence obtained by coercion, we preserve the liberty interest necessary for liberty, while at the same time providing for a limited means of also maintaining a civil society. In short, ordered liberty.

That's a wrap. Six cases out today -- Zelman was not one of them (this does not bode well). I'll have a rundown on the other three shortly. Or read them here.

Barnes v. Gordon. Punitive damages may not be awarded in private actions brought pursuant to the ADA. Unanimous decision. Majority opinion by Scalia and an opinion joining in the judgment (but not the majority opinion) by Stevens joined by Ginsburg and Breyer.

Horn v. Banks a per curiam clarification with respect to the Antiterrorism and Effective Death Penalty Act of 1996. Since this is a 3rd Circuit case, look for Howard Bashman to be all over this.

Carrey v. Saffold This is another case dealing with the Antiterrorism and Effective Death Penalty Act of 1996 which provides a one year statute of limitations for filing a federal habeas corpus petition, but it tolls the limitations period while a “properly filed application” for collateral review is “pending” in the state courts. Breyer, writing for a 5-member majority holds that "pending" means one thing, while Kennedy, writing for the 4 dissenters, sees it meaning something else. The three more centrist judges split 2-1 on this with Souter, the liberal-leaning "centrist" and O'Connor going with the majority (Kennedy writing the dissent).

Two More cases: The Jehovah's Witness case -- town regulations on door-to-door soliciting were struck down (no surprise) and the police don't have to give public transportation users notice of their rights (big surprise -- NOT -- post-9.11).

More. The first case, above, was Watchtower Bible & Tract Society of New York, Inc. etc. v. Stratton, Ohio, et al. 00-1737 and was appealed from the 6th Circuit Court of Appeals (240 F.3d 553). This was written by Stevens 8-1, Rehnquist dissenting.

The second, U.S. v. Drayton, Christopher & Brown, Clifton. 01-0631 was appealed from the 11th Circuit Court of Appeal s (231 F.3d 787) . Basically, if you get on a Greyhound bus in the Florida heat, wearing bulky jackets and baggy pants, you're going to be searched. Kennedy writing for a 6-3 majority.

Supremes. First case out -- the Fior d’Italia loses, the IRS wins. This overturns what I thought was a very persuasive opinion from Judge Alex Kozinski holding that the IRS does not have the authority to guess at what tip income may be and then assess a tax on the restaurant. Details later...

Lower Court Decision: 9th Circuit Court of Appeals (242 F.3d 844) .

More Interesting -- a 6-3 decision with Scalia, Thomas and Souter in dissent. Breyer writing for the majority

Today. Today should be the day the Supreme Court announces its decision in the Zelman (school voucher) case. There's only one other pending case (about 19 pending cases altogether) that has been on the docket longer, so this is just an educated guess. Check back here after 10:20 or so for updates.

Chief Justice Kennedy? The WaPo looks at whether Anthony Kennedy is positioning himself to be nominated as the next CJ. The internet version of the story should be reviewed if for no other reason than to get a look at the picture of Clarence Thomas in the background, rolling his eyes.

Deep Throat? Who was "Deep Throat"? Howard Kurtz digests John Dean's picks. However, after his books on John Belushi and William Casey, I'm convinced that there was no Deep Throat -- that was just a cover story invented by Woodward so he could make up his own facts. Do you really think Janet Cooke was unique?

2-0. USA beats Mexico in World Cup action.

Cover Watch. Newsweek on the brain beats Tom Cruise on Time's cover -- although, had Time gone with Pre-crime, maybe tying it in with pre-empting the terrorists, it would've won.