September 22, 2004

Does The Law Mean Anything?

by Chris Geidner

In this post questioning if the First Amendment means anything in light of the Supreme Court's oft-repeated "if the First Amendment means anything" language, Will Baude didn't go far enough.

In fact, a quick Westlaw search leads me to believe that Will's post could have had the above-referenced title. Look:

"If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." [Lawrence v. Texas 123 S.Ct. 2472, 2477 (2003) (citing Eisenstadt v. Baird, 405 U.S. 438, 453 (1972))]

[I]f the "lawful purposes" criterion means anything that would not subsume and render the "bona fide research" criterion superfluous, it must impose some limit on eligibility for unblocking . . . . [U.S. v. American Library Ass'n, Inc., 539 U.S. 194, 233 (2003)]

If the Communications Act's saving clause means anything, it preserves state-law remedies against carriers on facts such as these. [American Tel. and Tel. Co. v. Central Office Telephone, Inc., 524 U.S. 214, 233-234 (1998)(Stevens, J., dissenting)(footnote omitted)]

[I]f the concept of penalty means anything, it means punishment for an unlawful act or omission, and a punishment for an unlawful omission is what this exaction is. [U.S. v. Reorganized CF & I Fabricators of Utah, Inc., 518 U.S. 213, 224 (1996)]

"[I]f the constitutional conception of 'equal protection of the laws' means anything, it must at the very least mean that a bare ... desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." [Romer v. Evans 517 U.S. 620, 634 (1996) (citing Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973)]

If, indeed, the presumption against pre-emption means anything, § 18(a) must be read in just this way. [Gade v. National Solid Wastes Management Ass'n 505 U.S. 88, 118 (1992) (Souter, J., dissenting)]

If judicial immunity means anything, it means that a judge "will not be deprived of immunity because the action he took was in error ... or was in excess of his authority." [Mireles v. Waco 502 U.S. 9, 12-13 (1991)(per curiam)]

If the rule of lenity means anything, it means that the Court ought not do what it does today: use an ill-defined general purpose to override an unquestionably clear term of art, and (to make matters worse) give the words a meaning that even one unfamiliar with the term of art would not imagine. [Moskal v. U.S. 498 U.S. 103, 132 (1990)(Scalia, J., dissenting)]

If narrow tailoring means anything, surely it must mean that action taken to counter the effect of amassed "war chests" must be targeted, if possible, at amassed "war chests." [Austin v. Michigan Chamber of Commerce 494 U.S. 652, 688 (1990)(Scalia, J., dissenting)]

This "if X means anything" opinion-writing strategy does not seem to me to be all that different from -- or any more justifiable than -- the "obviously" or "clearly" opinion-writing cop-out (discussed in Professor Brad Wendel's "Cranky, Opinionated Guide" (cached version) to legal style). "If X means anything" is "a rhetorical crutch," as Wendel calls "clearly" and the like, that represents an attempt to avoid -- or take a pass on -- a substantive discussion of the underlying merits of the claim in question.

September 22, 2004 12:46 AM | TrackBack
Comments

I miss free Westlaw...

Posted by: Fool at September 22, 2004 03:47 PM

There you go, bringing facts into it again. Nice post!

Posted by: Mojo at September 22, 2004 03:51 PM

I avoid "clearly" like the plague. Except when opposing counsel is clearly an idiot and clearly wrong.

Posted by: UCL at September 22, 2004 06:55 PM
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