Ace of Spades HQ

June 26, 2008

Justice Stevens Should Be Keeping a Closer Eye on His Clerks
— Gabriel Malor

David Hardy noticed some factual errors in Justice Stevens' Heller dissent:

Comment on to previous post points out at p.2 of the Stevens dissent he refers to NFA and US v. Miller: "Upholding a conviction under that Act, this Court held that..."
Same mistake the 9th Circus made years ago and had to issue a new opinion, since Miller was never convicted -- commentators noted this was pretty suggestive the court hadn't bothered to read Miller before citing it. First thing you look for in reading a case is what happened below, and what the Court do to that. Very first thing.
I'd add that at 41 he refers to:
"In 1901 the President revitalized the militia by creating the 'National Guard of the several States,' Perpich 496 U.S. at 341 and nn. 9-10."
Reading that part of Perpich v. Dodd: It says in 1901 President Roosevelt called for reforming the militia. He didn't create the National Guard (where would he have had the authority?)
On the next page Perpich says that Congress in 1903 enacted the Dick Act, which created the "National Guard of the Several States."

Certainly they aren't earthshaking mistakes; correcting them wouldn't change Stevens' conclusions. But they do indicate carelessness from him and from his clerks. We all know he's not the first jurist to make small mistakes of fact, or even large ones. But Hardy's post put me in mind of a notable error in one of his more important recent opinions which made a complete mess of international law.

In Hamdan, Stevens wrote the majority opinion which rested in part on the preposterous idea that the U.S. conflict with Al Qaeda is global, but "not of an international character." Later, it turned out that conclusion was taken verbatim from an amicus brief by some law professors who conveniently elided a critical quote from an international law treatise:

Did the Court engage in a deliberate manipulation or distortion of authorities, as it seem to be the case? Well, no, but that actually doesnt make things any better. To my surprise, I found out that the Courts miscitation and misquotation of the Commentary in fact fully reproduces the exact same error in citation and the exact same incomplete quotation in an amicus brief on IHL submitted to the Court by Professors Jinks, Goodman and Slaughter (Hamdan at p. 68, amicus brief at p. 19 please do look for yourself).
This shows beyond any doubt that the Justices (and, worse, their clerks) DID NOT EVEN READ the Commentary on the Additional Protocols which they cited, certainly one of the most authoritative works on the issue in question.

Stevens' mistake is now binding precedent in the United States. Whoops. (Although, to be perfectly honest, I expect Stevens would have come to the same conclusion by other means if he had been aware of the error.)

Anyway, as I was reading through his dissent's version of the Second Amendment's history today, I found myself thinking how much trouble we would be in if Michael Bellesiles hadn't been so thoroughly discredited. Professors can be trouble. Law clerks, too.

Posted by: Gabriel Malor at 08:19 PM | Comments (67)
Post contains 541 words, total size 3 kb.

1 John McCain will put the national interest ahead of partisanship, he will work with anyone who sincerely wants to get this country moving again. If John McCain is elected President, the era of the permanent campaign will end.

Posted by: a concerned citizen at June 26, 2008 09:03 PM (SiwSa)

2 The Dick Act. He he he.

Posted by: PDizzle at June 26, 2008 09:25 PM (btpzp)

3 When the highest court in the land decides to make law up out of the air without bothering to read the cases its cites as precedent that's beyond earth shattering. It's the death knell of the whole damned system of jurisprudence. There's a reason they don't call the judicial the legislative...because they two ain't supposed to be the same thing. Writing an opinion that cannot be reviewed is not the same as appearing on Hannity ad Colmes. It requires thought, research and reason...at least it did until today. Thanks Supremes.

Posted by: corvan at June 27, 2008 12:55 AM (1g+FW)

4 The Dick Act also created America's Secret Army, as looked at by Strategypage... little have we remembered that the US Constitution goes beyond *just* the armed forces of the Union and personal rights under Amendment II. There is also Art.1 Sec. 10 to consider and the exemption of what the States can do when invaded or in times of Danger. To do those things you must have a personal right to bear arms, separate from the government, and the Dick Act creates just that army.

Posted by: ajacksonian at June 27, 2008 01:43 AM (oy1lQ)

#1, take your McCainiac trolling bullshit and go somewhere else with it. Cutting and pasting Juan McAmnesty's talking point of the day won't get you anywhere around here. Eat shit and die slow.

Posted by: SGT Dan at June 27, 2008 02:25 AM (YzCiM)

6 If Stevens were Obama: These are not the clerks that I thought I knew!

Posted by: simpson316 at June 27, 2008 02:44 AM (U+xfH)

Props to #2. You beat me to it.

Anyhow, it doesn't matter if John Stevens plagiarized a lie. It was a truthy plagiarized lie. It fit the narrative. Which is precisely what the left is looking for in a final arbiter of the highest law of the land.

And you can't expect him to remember that far back anyway. VH1 hasn't made I love the 1900s yet.

Check out my latest post on the matter if you've already visited all the hobo porn sites you like to hit every day:

http://condig.blogspot.com/2008/06/constitution-saved-by-scalia-5-4.html

Best Wishes

Posted by: ATNorth at June 27, 2008 03:44 AM (/HWA9)

hate to break it to everyone and I know it will come as a shock but judges lie in opinions all the time. they "mis-state" facts and mischaracterize cases all the time. who will call them on it-the ABA? the bar associations of the respective states? if a Supreme Court justice can elevate the opinion he formulated while shaving into the equivalent of the Ten Commandments, why would a little lie shock anyone.

Posted by: ejo at June 27, 2008 04:44 AM (Urhve)

9 Just gives more credence to the idea that Justices have already made up their minds and work backwards in finding "facts" they can use to support their "conclusion".

Posted by: GarandFan at June 27, 2008 04:51 AM (eJ32B)

10 Um, excuse me, bitter much? This clerk stuff is hard!

We have to read all these stacks of rulings and briefs and shit, and they're full big lawyer words in Latin or Greek or something. Plus, Larry brought in his Obama speeches CD and we have been glued to that for months.

You don't need a gun anyway.

Posted by: Stevens' clerks at June 27, 2008 05:13 AM (WWkFI)

11 Cut him some slack, the guy is senile and crazy to boot. He can't help it.

Posted by: Purple Avenger at June 27, 2008 05:40 AM (dcqty)

http://www.conservapedia.com/Michael_Bellesiles

Michael A. Bellesiles is an historian who claimed that there were few guns and gun owners in early America...

Lookie what I found.

Posted by: Cluebat from Exodar at June 27, 2008 05:50 AM (y67bA)

13 Impeachment.

Posted by: EC at June 27, 2008 06:43 AM (mAhn3)

14 Stevens could do Barack Obama a huge favor by stepping down this summer.

By reducing the stakes in the SCOTUS, a Stevens resignation would weaken McCain and give those already disinclined to support McCain one less reason to get out and vote. Bush probably could not get a conservative justice in, but he could put in a moderate, so the left would not be giving up much in terms of the composition of the court.

Posted by: Socky at June 27, 2008 07:54 AM (/0sRQ)

These clerks are stupid. But they're not as stupid as you.

P.S. One time I tried to give you a Cleveland Steamer, but you kept eating it.

*pffffffft*

Posted by: Dogstar at June 27, 2008 10:19 AM (FgxdU)

16 Oh, and I hate it when he eats asparagus. It makes his semen taste yucky.

Posted by: Dogstar at June 27, 2008 10:30 AM (1Mq7K)

17 Militia. I am tired of people getting away with saying that the militia is the National Guard. 1. Texas has a State Guard (and Air Guard) as well as few units of US National Guard. 2. It isn't the police either. Texas hasn't had a state police since just after reconstruction.
The militia of a republic is the armed people of the state. The fact that the US and the states haven't drilled or organized their militias in centuries is a shame.

Posted by: Potosi Joel at June 27, 2008 10:32 AM (TPRbZ)

18 Geez, Dogstar, big Rod Blagojevich fan? Or Roger Ebert? God knows which one is worse.

Posted by: Sort-of-Mad Max at June 27, 2008 10:36 AM (kKgTD)

19 Oh-----kay, that's what I get for not reading the last thread. Mondo Bizzaro!

Besides, when I think of Cleveland Steamer, I always picture Dennis Kucinich for some strange reason.......

Posted by: Sort-of-Mad Max at June 27, 2008 10:40 AM (kKgTD)

20 Anyhow, that was really an awful thing to say. This is obviously not the
you that I've known for the last 20 years.

Posted by: Sort-of-Mad Max at June 27, 2008 10:49 AM (kKgTD)

21 Texas hasn't had a state police since just after reconstruction.

Not that I disagree with the rest of your comment, I don't. But this statement is incorrect. Ever heard of the Texas DPS, or the Texas Rangers (No, not the baseball team), which are a division of the DPS?

Posted by: SaTx at June 27, 2008 10:49 AM (t9IvU)

22 Damn, what the hell did I do to you Dogshit?

Oh yeah, Friday FlameWar....maybe I am stoopid.

But really, I think that you're just envious that my canine-related internet handle is cooler than yours.

Jealousy is an ugly emotion.

Posted by: IllTemperedCur at June 27, 2008 10:55 AM (Ds4I5)

23 Okay, I just read the other thread, therefore providing proof that I'm stoopid.

That's some funny shit.

Posted by: IllTemperedCur at June 27, 2008 10:57 AM (Ds4I5)

Eewwww!

That's gross.

Anyway..I never heared of conservapedia.

Submitted for y'alls perusal.

Posted by: Cluebat from Exodar at June 27, 2008 11:08 AM (Mv/2X)

Ha! This is too much fun. The Supreme Court will probably issue a 5-4 decision outlawing it.

Written by Kennedy, of course.

Posted by: Dogstar at June 27, 2008 11:13 AM (FgxdU)

26 Is Stevens even awake to read his opinions after he/his clerks have written them?

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