Saturday, December 31, 2005
Taking Stock of 2005...
And so, 2005 comes to a close, capped off by the Graham Amendment (for the final version, see pages 341-44 of this PDF), the McCain Amendment (see page 340 of the same PDF), Snoopgate, and Snoopgategate.
Last night, some friends of mine and I were discussing over dinner two widely disparate questions: What was the best movie of 2005, and what was the most important legal development of 2005? (This is the problem with hanging out with friends who are lawyers -- we lose all sense of perspective.)
Anyway, I have to confess that I was hard-pressed to answer either question. Whether or not it's been a down year for movies, those movies that have succeeded have generally been rather dark (e.g., Syriana, Revenge of the Sith, Harry Potter). Even Charlie & the Chocolate Factory was a darker version of the Gene Wilder original.
The parallels between Hollywood and the year of legal developments were, at least to us, striking. Kelo and the Ten Commandment cases [Van Orden and McCreary County] notwithstanding, this was not the same kind of show-stopping year in the Supreme Court as 2004 was... Maybe the nominations of Chief Justice Roberts and Judge Alito will prove to be the most lasting legal developments, but short of that, lots of wrangling over torture, spying, and secret prisons -- along with painful questions about governmental responsibility in emergencies -- have been the dominant legal stories of at least the second half of 2005. And I had to stop and think to remember what the dominant legal story of the first half was, although Terri Schiavo has to be the runaway favorite (with Booker and its accompanying mess a close second).
And so, with 2006 already in full force on the other side of the world, what was (1) the best movie of 2005; and (2) the most important legal development?
My votes, for what very little they're worth, are for Batman Begins (the movie) and, probably controversially, a pair of due process decisions by the Supreme Court that have flown at least somewhat beneath the radar -- Castle Rock v. Gonzales and Wilkinson v. Austin.
Plenty of other developments were far more newsworthy, and arguably more important to a narrower class of cases. But both Castle Rock and Austin exemplify two separate, but equally important points: In general, contemporary due process analysis tilts heavily in the government's favor, especially where law enforcement or prison conditions are concerned (as in these two cases); and it is only an increasing misnomer to cast Justices Stevens, Souter, Ginsburg, and Breyer as the Court's "liberals." After all, Castle Rock was 7-2, and Austin was unanimous.
But, I'm equally sure that I'm in the minority in viewing Castle Rock and Austin as such important developments. So, let the disagreements begin!!
(And Happy New Year to one and all -- even Yankees fans).
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1. Kings and Queen, although I have to confess that I haven't caught up to many of the most acclaimed films of the year, including 2046, Grizzly Man, the World, and Hidden (see http://www.villagevoice.com/take/seven.php?page=winners&category=1); and, being the Malick obsessive that I am, I'm assuming (hoping) The New World will be at the top of my list once it opens here in D.C.
2. The fact that the Executive has asserted -- and apparently has, in many cases, acted on -- the proposition that no statute "can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response," and that "[t]hese decisions, under our Constitution, are for the President alone to make." See http://www.usdoj.gov/olc/warpowers925.htm. In other words, that we're having a serious discussion about whether FISA, and the Torture Act, and the Uniform Code of Military Justice, and the federal assault statute, and the War Crimes Act, and the 60-day-limit provision of the War Powers Resolution -- and even the 9/18 AUMF itself (to the extent it is read, as it ought to be, as in some respects limiting the scope of force) -- and treaties governing the treatment of detainees, and (probably) the Posse Comitatus Act, and who knows how many other laws, are unconstitutional to the extent they limit the President's discretion in times of war.
Posted by: Marty Lederman | Dec 31, 2005 1:34:29 PM
Hee hee -- that was to have been my pick, Marty (the executive power issue; I'd still vote for Batman), but, for once, I wanted to write about something else. Besides, you put it better than I could have.
Posted by: Steve Vladeck | Dec 31, 2005 1:41:02 PM
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