{"id":10182,"date":"2008-10-22T11:17:22","date_gmt":"2008-10-22T16:17:22","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/ethicalesq\/?p=10182"},"modified":"2011-08-05T14:53:18","modified_gmt":"2011-08-05T18:53:18","slug":"big-league-battles-guns-and-baseballs","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/2008\/10\/22\/big-league-battles-guns-and-baseballs\/","title":{"rendered":"big league battles: guns and baseballs"},"content":{"rendered":"

\"\"<\/a> T<\/em><\/strong>here are two good diversions available today for folks who would like to give the old Sicilian Chin-flick to either or both of the Presidential Campaigns: 1) The recent attacks from the political and judicial Right on the Supreme Court’s gun control decision in D.C. v. Heller<\/a><\/em> — especially as it focuses on the “judicial activism” of Justice Antonin Scalia; and, for those who would rather avoid all political agita, 2) The opening of the World Series<\/a> tonight in Tampa Bay, Florida.<\/p>\n

\n

October revival
\nall hands lift
\nto the foul ball<\/p>\n

\n

\n

two outs in the ninth\u2013
\nthe reliever bangs the ball
\nagainst his cup<\/p>\n

\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026\u2026. by Jim Kacian<\/a>
\n\u201cOctober revival\u201d – Piedmont Lit. Review (Circa 1992); Baseball Haiku<\/a> (2007)<\/p>\n

\"\"<\/a> .. Justice Antonin Scalia.. <\/em>(photo: Peter Smith\/Boston Herald<\/a>)<\/em><\/span><\/span><\/p>\n

Who Are You Calling an Activist?<\/em><\/strong> Yesterday’s NYT<\/em> article “Ruling on Guns Elicits Rebuke from the Right<\/a>” (New York Times<\/em>, October 21, 2008) has been getting a lot of attention.\u00a0 In it, Adam Liptak says:<\/p>\n

“Two prominent federal appeals court judges say that Justice Antonin Scalia’s majority opinion in the case, District of Columbia v. Heller, is illegitimate, activist, poorly reasoned and fueled by politics rather than principle. The 5-to-4 decision in Heller struck down parts of a District of Columbia gun control law.”<\/p>\n

As Prof. Steven Schwinn at Constitutional Law Prof<\/em> Blog<\/em> summarizes in “Heller critiqued from the Right<\/a>“:<\/p>\n

“Adam Liptak (NYT) reported<\/a> today that Judge J. Harvie Wilkinson III (4th Circuit) and Judge Richard Posner (7th Circuit) criticized D.C. v. Heller<\/a><\/em>, last term’s gun-rights case, for its methodology.\u00a0 Particularly, Judge Wilkinson wrote<\/a> in a Virginia Law Review<\/em> article, and Judge Posner wrote<\/a> in The New Republic<\/em>, that the Court’s methodology had some of the same problems as the Court’s methodology in Roe v. Wade<\/em>.<\/p>\n

“The articles aren’t new, and I suspect many of us have been using them and Heller<\/em> to illustrate and discuss originalism in our classes.\u00a0 (Heller<\/em>, of course, is a wonderful case study, because both majority and dissent claim to adopt a form of originalism, but they come out very differently.)\u00a0 But Liptak’s article, which clearly and concisely sets out the arguments and explores (even if only briefly) the politics of aligning Heller<\/em> with Roe<\/em>, gives us yet another way to share these issues with our students.”<\/p>\n

\"\" .. At the often-thoughtful, mostly right-leaning Volokh Conspiracy<\/em>, Prof. David Bernstein disagrees with Judge Wilkinson’s comparison of Roe<\/em> and Heller<\/em>, saying “this is a terrible analogy, and one that would get a poor grade from me if made on a constitutional law exam.”\u00a0 And, although VC<\/em>‘s Jonathan Adler is not convinced by Judge Wilkinson’s complaints against Helle<\/em>r, he is also not at all surprised, because “Judge Wilkinson has always been uncomfortable invalidating legislative acts on constitutional grounds.”<\/p>\n

F<\/em>or more, see “Conservatives against Heller<\/a>” at Reason.com<\/em> (Oct. 21, 2008); “Another judge rips Scalia’s Heller opinion<\/a>,” from Scott Greenfield” at Simple Justice<\/em> (Oct. 22, 2008); and “Is Heller<\/em> like Roe v. Wade<\/em><\/a>,” at Feminist Law Profs<\/em>.<\/p>\n

The skeptics here at f\/k\/a<\/em> have always felt that Activism is in the Gut of the Beholder (or, as Prof. Yabut put it a few years ago, “it all depends whose Fox is being whored.”) Back in 2004, Dahlia Lithwick got it right in a guest column in the New York Times<\/em>, headlined “Activist, Schmactivist<\/a>” (August 15, 2004):<\/p>\n

We can disagree about outcomes, but we have, at least as a matter of political language, internalized the fiction that liberal judges “make” law, while conservative judges “interpret” it.<\/em><\/p>\n

A modest proposal, then: Let’s invent a new term right here, today, for judges or judicial nominees on the right, who claim to be merely “interpreting” the Constitution, even when they are refusing to impose settled law; law they deem unsettled because it was invented by “liberal activist judges.” And while I am open to better suggestions, here’s a tentative offering: “Re-activist judges.”
\n<\/em><\/p>\n

T<\/em>hat’s about all punditry we’re gonna make today (since we have to run out to see our primary medical provider), beyond noting that we’ve been less than impressed over the years with the antics of our paisan Anonin Scalia (see here<\/a> and there<\/a>).<\/p>\n

\"\"<\/a> .. Phillies vs. Rays<\/em><\/strong>: The (so-called) World Series<\/a> starts tonight, with the Philadelphia Phillies visiting the Tampa Bay Rays. The f\/k\/a<\/em> Gang is even more indifferent than usual about the outcome of this year’s Fall Classic.\u00a0 Nonetheless, the World Series is a great excuse to remind you to check out the f\/k\/a<\/em> Baseball Haiku page<\/a>, our many excerpts<\/a> from last year’s haiku classic volume Baseball Haiku<\/em><\/a> <\/em><\/em>(W.W. Norton<\/a> Press, 2007), and our coverage of the Chautauqua Institution’s Baseball Haiku Roundtable<\/a> this past June.<\/p>\n

As we’ve said before, you don’t have to like baseball or haiku to like baseball haiku. Here are a few tiny seasonal poems to get you in the baseball spirit:<\/p>\n

first red leaves <\/span>\"\"
\n i swing late
\non a change-up<\/span><\/p>\n

<\/span><\/p>\n

<\/span><\/p>\n

<\/span><\/p>\n

two crows
\nsettle on the foul pole\u2026
\n100th loss<\/span><\/span><\/p>\n

\u201cred hots!\u201d <\/span>\"\"
\n for an instant i\u2019m ten
\nand
\nfather\u2019s still alive<\/span><\/p>\n

<\/span><\/p>\n

\n
\n

<\/span><\/p>\n<\/blockquote>\n<\/blockquote>\n


\nbases loaded
\nno one out\u2026..
\nthe pitcher
\nblows a bubble<\/span><\/p>\n

<\/span><\/p>\n

. . . . . . . . . . . . by <\/span> Ed Markowski<\/a> – <\/span> \"\"<\/p>\n

\u201cbases loaded\u201d – Haiku Sun<\/em> (Issue X, Jan. 2004)<\/span><\/span><\/p>\n

\"\" and see our collection from Ed: \u201cAmerican Sports . . . American Haiku<\/strong><\/em><\/a>\u201d (June 2008; cover<\/a>)<\/p>\n

third strike
\nthe designated hitter
\nblows on his hands<\/p>\n

tied in the ninth
\npitcher and batter
\ncross themselves<\/p>\n

\u2026\u2026\u2026\u2026. by dagosan<\/a><\/p>\n

\"\" p.s.<\/strong><\/em> Did you say you really do need your Presidential Politics Fix today?\u00a0 Head over to the new ABAJournal<\/em><\/a> (American Bar Association, November 2008), where the cover story tells you their best guesses at “The Lawyers Who May Run America<\/a>” in either a McCain or an Obama Administration.<\/p>\n","protected":false},"excerpt":{"rendered":"

There are two good diversions available today for folks who would like to give the old Sicilian Chin-flick to either or both of the Presidential Campaigns: 1) The recent attacks from the political and judicial Right on the Supreme Court’s gun control decision in D.C. v. Heller — especially as it focuses on the “judicial […]<\/p>\n","protected":false},"author":94,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_feature_clip_id":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2},"jetpack_post_was_ever_published":false},"categories":[555,3513],"tags":[2845],"class_list":["post-10182","post","type-post","status-publish","format-standard","hentry","category-haiku-or-senryu","category-lawyer-news-or-ethics","tag-add-new-tag"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/p6kP1R-2Ee","_links":{"self":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/10182","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/users\/94"}],"replies":[{"embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/comments?post=10182"}],"version-history":[{"count":1,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/10182\/revisions"}],"predecessor-version":[{"id":12144,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/posts\/10182\/revisions\/12144"}],"wp:attachment":[{"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/media?parent=10182"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/categories?post=10182"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/wp-json\/wp\/v2\/tags?post=10182"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}