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Will Sixth Circuit Ohio Election Decision Be Overturned En Banc?

Yesterday's divided Sixth Circuit decision voiding the district court's TRO against Ohio Secretary of State Jennifer Brunner prompted a strongly worded dissent by Judge Griffin.

Defendant Ohio Secretary of State Jennifer Brunner's lack of concern for the integrity of the election process is astounding and deeply disturbing. Also troubling is the majority's rush to issue the present order in violation of the practices of our court. Although a petition for initial en banc hearing is pending and will be decided tomorrow by our active judges, Jude Moore along with visiting Judge Bright, have decided to ignore the en banc petition and issue their order. I respectfully dissent regarding the merits of their decision and object to the procedure.

In the normal course of review, we will grant a stay of a temporary restraining order only if the district court abuses its discretion. . . . Here, defendant Brunner has failed to demonstrate that the district judge abused his discretion, and, thus, the emergency motion for a stay should be denied.

The majority assumes, and I agree, that plaintiffs possess standing to bring this 42 U.S.C. § 1983 action alleging a violation of the Help America Vote Act (HAVA). . . . Defendant Brunner claims compliance with HAVA, but the district court found that the system as currently structured is unable to effectively identify the mismatches of potential voters to the county boards of elections. The court determined that the "Verification of voter registration information" required by HAVA was not executed because "there is no effective way for irregularities to be reviewed." Without implementation, there is no compliance. In order to remedy this violation, "Defendant represented that it could take two or three days of programming work before the State would have the ability to search for mismatches in the same way it has the ability to search other fields such as name, address, social security, date of birth, precinct number . . . ." The district court's TRO requiring defendant to take two or three days to make the identification system effective and in compliance with HAVA is certainly not an abuse of discretion.

Judge Griffin then attached of the opinion and order by District Court Judge George Smith.

Allegations of procedural irregularities on the Sixth Circuit are something we've heard before. An en banc ruling could issue as early as today. Stay tuned.

J. Aldridge:
Plaintiffs would possess standing to bring action alleging a violation of the Help America Vote Act (HAVA) if in fact HAVA was written in pursuance to the constitution. Since nothing in the constitution empowers congress to assist in elections the law is void.
10.12.2008 11:18am
Justin (mail):
Are those typos in the original dissent, or were they a transcribing problem?
10.12.2008 11:46am
Norman Bates (mail):
J. Aldridge: The Constitution requires that all States be republics. Corruption of the election process would interfere with if not utterly prevent republican governance. Therefore, attempts to protect the voting process at the State level are well within the purview of Congress.
10.12.2008 11:46am
J. Aldridge:
Norman Bates: State regulation of elections or voter qualifications IS republicanism.

"The States have exercised the power of controlling, regulating, and restricting popular suffrage from the commencement of the State governments down to present time. It is one of the rights reserved to the States, and is to be exercised in its fullness and in its plenitude without any control on the part of Congress or any question being put by Congress to them." --Jacob M. Howard (1868)
10.12.2008 12:01pm
Eric Muller (www):
Why is the 6th such a nasty circuit, anyway?

I'd hate to attend a 6th Circuit Judicial Conference. The luncheon must turn into a big food fight.
10.12.2008 12:03pm
L (mail):
One curiosity raised by the dissent: why, after the Sixth Circuit was recently (and finally) given its full complement of 16 active judges and with a number of senior circuit judges available to it, was a visiting judge randomly assigned to the motions panel that hears these cases? The Sixth Circuit has for years been dependent on visiting judges (both district judges from within the circuit and circuit and district judges elsewhere) to handle its heavy caseload. But that's no longer the case, and it seems to me that the Clerk's Office, without muddling the randomness of panel assignment, should have taken pains to assure that this sensitive local issue with national implications was resolved in the first instance by Sixth Circuit judges. There's no guarantee in this regard, but I suspect that the temptation for en banc review is far greater with a visiting judge having cast the deciding vote.
10.12.2008 12:15pm
Brett Bellmore:

Since nothing in the constitution empowers congress to assist in elections the law is void.


The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.


If the states were running their state level elections completely separate from elections for federal office, you might have a point. Congress passes plenty of laws without even a hint of enumerated power to justify them, but this isn't one of those laws.
10.12.2008 12:29pm
Shertaugh:
Griffin in his dissent:

Defendant Ohio Secretary of State Jennifer Brunner's lack of concern for the integrity of the election process is astounding and deeply disturbing.

Bush v. Gore makes clear that the federal judiciary is obligated to control the manner in which state officials (including judges) administer state laws. So as to make sure, if for no other reason, the rest of the won't laugh at us again. No.?
10.12.2008 12:46pm
Cornellian (mail):
The Constitution requires that all States be republics. Corruption of the election process would interfere with if not utterly prevent republican governance. Therefore, attempts to protect the voting process at the State level are well within the purview of Congress.

That would be the mother of all penumbras.
10.12.2008 12:48pm
J. Aldridge:
Dear Brett Bellmore,

The "manner" of holding elections for Senators and Representatives has always meant the manner of choosing, i.e., by either voice or by ballot. This never gave Congress any authority to regulate qualifications of voters to vote.

“The qualification of electors and the manner of holding or conducting elections are as distinct from each other as light and darkness.” --John A. Bingham
10.12.2008 12:59pm
J. Aldridge:
Cornellian,

What is a Republican government? Hint: It isn't a monarchy. For a central authority to dictate who may vote and under what conditions within a member republic is not republicanism but merely tyranny.
10.12.2008 1:04pm
Donald (mail) (www):
I don't think it's fair to call the Sixth Circuit "nasty," but it is, perhaps, the circuit that most closely reflects the national liberal/conservative split. With judges coming from Michigan, Ohio, Kentucky, and Tennessee, that's probably to be expected.

As for en banc review: I'm having a little trouble seeing how this would work under Sixth Circuit IOP. Of course, initial hearing on the merits en banc is possible (and, if possible given the time, perhaps preferable). But this opinion involves a motion for stay of a district court decision, which was referred to a motions panel. I can't think of any prior situation in which a motion bypassed a motions panel and went directly to the full court, nor do I see any procedure that can put the motion (as distinct from the full appeal) before the en banc court. Any thoughts?
10.12.2008 1:52pm
CrazyTrain (mail):
Since nothing in the constitution empowers congress to assist in elections the law is void.

See U.S. Const., amends XV s.2, XIX para.2, XXIV s.2, XXVI s.2.

See also U.S. Const., amend XIV, s.5.

Thanks for coming out. You'll get 'em next time.
10.12.2008 2:59pm
dcuser (mail):
This is a case where the Republican Party's position ought to be doomed by the conservative jurisprudence that Republicans have so loudly cheered.

1) Under Doe v Gonzaga Univ and related cases, section 1983 does not create a private right of action except for statutes that unambiguously confer an individual right that Congress intended to be privately enforceable. It's quite a stretch to find congressional enactment of an individual right here. And while the Supreme Court (in Bush v Gore) recognized that individual voters have a constitutional right not to have votes counted in an irrational manner, it's a humongous stretch to believe that purported underenforcement of one particular antifraud measure (matching these two lists) violates that Constitutional right.

2) Moreover, under Heckler v. Chaney and Lujan v. Def Wildlife, there's an argument that individuals don't have standing to pursue an underenforcement claim here. The interest in having accurate voter rolls is one that is shared among all citizens. It's not clear that the plaintiff here -- the Republican party -- has a sufficiently concrete and individualized interest, either on its own account or as third-party representative of its members, to allow jurisdiction.
10.12.2008 3:00pm
J. Aldridge:
If you had any idea what you were talking about, CrazyTrain, you'd know Congress and the Supreme Court always viewed state regulation of voter qualifications strictly off limits to congress. If you were really smart you'd also have known the framers of the 14th amendment concurred they had no authority to control or regulate voting within former rebel states. This is how control went from Carpetbaggers to Democrat in the south.

Try and keep up, k?
10.12.2008 3:34pm
Chris Lawrence (mail) (www):
The Supreme Court would seem to disagree; see e.g. South Carolina v. Katzenbach and Oregon v. Mitchell.
10.12.2008 3:54pm
J. Aldridge:
Chris Lawrence, Warren court would had upheld an act of congress to regulate how many times Chines may flush their toilets at night if asserted to further advance some civil rights goal.
10.12.2008 4:27pm
J. Aldridge:
Justice Story said, “It cannot be said with any correctness that Congress can in any way alter the rights or qualifications of voters.”

James Madison, Jr. said, “The right of suffrage is certainly one of the fundamental articles of republican government, and ought not to be left to be regulated by the [Federal] Legislature.”
10.12.2008 4:29pm
Oren:

Chris Lawrence, Warren court would had upheld an act of congress to regulate how many times Chines may flush their toilets at night if asserted to further advance some civil rights goal.

And that's the law, like it or lump it. We do not operate our Republic based on the interpretation of the Constitution of random people on the internet.

I'd suggest learning some coping skills.
10.12.2008 5:18pm
J. Aldridge:
Oren, it's usurpation and deserves to be called such.
10.12.2008 5:36pm
loki13 (mail):
J. Aldridge,


Wonderful. You've made your point. While I'm sure your seances with Bingham have been the source of much personal illumination as well as innumerable blog posts, most of us on a legal blog tend to deal with the law as applied, not with idiosyncratic interpretations of what we wish the law was based on cherry picked quotes. I personally believe that incorporation should have been done through the PorI clause of the 14th, not SDP. That, and waiting in a long line with the rest of the common folk, will get me into the Supreme Court.
10.12.2008 5:45pm
J. Aldridge:
P.S. It appears Oren doesn't care to see the Constitution interpreted by those who were most responsible for its words.
10.12.2008 5:53pm
CrazyTrain (mail):
Justice Story said, “It cannot be said with any correctness that Congress can in any way alter the rights or qualifications of voters.”

James Madison, Jr. said, “The right of suffrage is certainly one of the fundamental articles of republican government, and ought not to be left to be regulated by the [Federal] Legislature.”


And all that was said long before the amendments I cited you. Or are those amendments not really part of the constitution? Be sure to put on your tin foil hat on election day, the feds may try to transmit secret obama waves to your brain that will force you to vote for him, and support Islamo-abortion-supporting-gay-marriages.
10.12.2008 5:56pm
CrazyTrain (mail):
We do not operate our Republic based on the interpretation of the Constitution of random people on the internet.

Wow, that was well said. You have won the thread.
10.12.2008 5:59pm
J. Aldridge:
loki13, incorporation is pure fiction. Why do you think an amendment to the Constitution was attempted in 1876 to bind the Establishment Clause against the states? Why did the House Judiciary lead by Bingham in 1871 rule the 14th amendment added nothing new to the P&I's of citizens?

The Civil Rights Bill of 1866 was an attempt to enforce the P&I's of new black citizens, and it was feared the supreme court would strike it down under the same argument used in Barron. If you listen to so-called legal blogers one would think the 14th was passed to overturn Barron!! LMAO

I come to argue law as law, not law under fictional tales.
10.12.2008 6:10pm
Oren:

Oren, it's usurpation and deserves to be called such.

Usurpation of what? Your right to claim bizarre theories of Constitutional interpretation and expect anyone to take you seriously?


P.S. It appears Oren doesn't care to see the Constitution interpreted by those who were most responsible for its words.
Dead people don't interpret anything -- it is the province of the living only.

Your only claim here is that you possess special insight to interpretation that, if those writers were alive, would be concordant with their views.
10.12.2008 6:12pm
J. Aldridge:
OK Oren, so ummm why did Scalia recently dwell so much on "dead people" in Heller?
10.12.2008 6:20pm
J. Aldridge:
OK CrazyTrain, here is what the dudes who adopted the 15th Amendment said AFTER ITS ADOPTION:


[A]ny State may require a property qualification, may require an educational test, may impose such conditions upon voting as it thinks proper, so they are uniform on all classes of citizens. That power has not been taken away from the States. The only power that has been taken away from them is the authority to discriminate on account of race, color, or previous condition.
---Sen. Lyman Trumbull (February 17, 1870)


Unanimous House Judiciary Report #22, January 30, 1871:

The proposition is clear that no citizen of the United States can rightfully vote in any State of this Union who has not the qualifications required by the Constitution of the State in which the right is claimed to be exercised, except as to such conditions in the constitutions of such States as deny the right to vote to citizens resident therein “on account of race, color, or previous condition of servitude.” The adoption of the Fifteenth Amendment to the Constitution imposing these three limitations upon the power of the several States, was by necessary implication, a declaration that the States had the power to regulate by a uniform rule the conditions upon which the elective franchise should be exercised by citizens of the United States resident therein.

The limitations specified in the Fifteenth Amendment exclude the conclusion that a State of this Union, having a government republican in form, may not prescribe conditions upon which alone citizens may vote other than those prohibited. It can hardly be said that a State law which excludes from voting women citizens, minor citizens, and non-resident citizens of the United States, on account of sex, minority or domicil, is a denial of the right to vote on account of race, color, or previous condition of servitude.

10.12.2008 6:25pm
U.Va. Grad:
Original intent originalism, J. Aldridge? Seriously? No one takes that terribly seriously any more.
10.12.2008 6:40pm
J. Aldridge:
U.Va. Grad: Scalia and Stevens sure took original intent seriously recently ;-)
10.12.2008 7:26pm
loki13 (mail):
J Aldridge,

No, they didn't. They took original expected application seriously. No one takes original intent seriously.
10.12.2008 7:43pm
J. Aldridge:
Stevens: "A refusal to consider reliable evidence of original intent in the Constitution is no more excusable than a judge's refusal to consider legislative intent."
10.12.2008 7:52pm
loki13 (mail):
J. Aldridge-

Then clearly, you misunderstand what 'original intent' means. Legislative intent is inferred through many means, but the words of, for example, a cherry picked sponsor of the legislation is not enough to understand 'legislative intent'.

'Original intent' as understood to be the 'intent of the founders' ha been dead since the late 1970s, early 1980s at the latest, except for the following:

1. As a popular rallying cry divorced from actual legal reasoning.

2. As a shorthand to refer to other originalist methods of Constitutional interpretation that do have validity.

In short, there is nothing intellectually wrong with originalism per se (although thee can be debates about whether, normatively, it is preferable). But original intent as you seem to view it is dead.

Anyway, the point is moot, because your cherrypicked quotes are meaningless in the real world. It's like the nutters who end up arguing they don't really owe any income tax- good luck with that.
10.12.2008 9:22pm
J. Aldridge:
Actually loki13, you are mistaken over assuming I been advocating original intent. I never uttered original intent but only was responding to those who had.

Everything I posted goes to the heart of original meaning of the words.

Good luck with defending the existence of the Easter Bunny when challenged to prove the Bunny actually exists.
10.12.2008 10:05pm
Bama 1L:
I think HAVA is constitutional.

The Guarantee Clause is a dead end--it has nothing to do with the inquiry. In Luther v. Borden, the Supreme Court stated that the Guarantee Clause cannot be judicially enforced and that any dispute arising under it is political in nature, to be resolved by the other branches. You cannot go to federal court and claim that a state has not provided you a republican form of government; you have to go to Congress or the President.

Has Congress ever passed any legislation or done anything else based on its power under the Guarantee Clause? I don't think so, but I'd love to find out that it has. Not HAVA, though.

HAVA, instead, gains its authority from state-bribing: the states get money to update their election infrastructure and in return have to follow certain rules. That's, what, the General Welfare Clause? At any rate, it's uncontroversially constitutional. If Ohio did not want to play by the rules, it could opt out of the federal funding. (The same scheme allows Congress to set a national minimum drinking age of 21 by denying highway funds to states that set it lower.)

Above were mentioned South Carolina v. Katzenbach and Oregon v. Mitchell. Katzenbach was a VRA of 1965 case. The statute was said to be based on the 15th Amendment, which certainly gives Congress power to regulate the states. In Mitchell, the federal law was struck down and the states were left free to set their own voting ages for state office, so I don't know why it was mentioned where it was.
10.12.2008 10:46pm
CrazyTrain (mail):
In Mitchell, the federal law was struck down and the states were left free to set their own voting ages for state office, so I don't know why it was mentioned where it was.

Wrong. Mitchell held that Congress could set a voting age for federal elections, but not state elections. So, it perfectly supported the proposition that Congress can regulate elections handled by the states, such as the upcoming election at issue in the case cited in this post.
10.12.2008 10:55pm
CrazyTrain (mail):
By the way, the cites at issue were not in support of the constitutionality of HAVA, but were in response to the utterly absurd contention by Aldridge that "nothing in the constitution empowers congress to assist in elections." As noted, several amendments expressly give Congress such authority (the fifteenth, nineteenth, 24th and 26th all specifically and unambiguously give congress the power to make laws respecting the manner in which elections are conducted by the states -- in all but the 24th amendemnt, those amendments do not differentiate between elections for state or federal office).
10.12.2008 10:59pm
Bama 1L:
Thanks, Crazy. I missed the forest for the trees there.

But I don't think HAVA has much in common with those laws, and furthermore the § 1983 issue puts the current case on a totally different footing.
10.12.2008 11:12pm
Bama 1L:
(That is, Congress can get any power it wants by bribing the states, but such exercise of power does not necessarily create a private right enforceable through a § 1983 action.)
10.12.2008 11:15pm
David M. Nieporent (www):
loki13, incorporation is pure fiction. Why do you think an amendment to the Constitution was attempted in 1876 to bind the Establishment Clause against the states? Why did the House Judiciary lead by Bingham in 1871 rule the 14th amendment added nothing new to the P&I's of citizens?
They didn't. They couldn't. "House Judiciary" doesn't "rule" anything. Would you please stop pretending that some congressional committee gets to interpret the constitution by writing a report?
The Civil Rights Bill of 1866 was an attempt to enforce the P&I's of new black citizens, and it was feared the supreme court would strike it down under the same argument used in Barron. If you listen to so-called legal blogersBingham one would think the 14th was passed to overturn Barron!! LMAO
Fixed it for you. If we care what Bingham said, Bingham explicitly said that the 14th was designed and intended to incorporate the BoR.
10.13.2008 1:18am
~aardvark (mail):
I don't know how the en banc decision is going to come out, but when the original decision came down my immediate reaction was that it would be overturned. That, so far, proved to be correct.

HAVA brings no compulsion for comparing voter registration to federal registry--but if a state choses to make such a match, it must then act on the findings.

Griffin's dissent is absurd--he puts the ephemeral "concern for the integrity of the election process" over the actual law. Let's hope that the circuit acts on the law and not on partisan compunction.
10.13.2008 2:24am
J. Aldridge:
David M. Nieporent said: "They didn't. They couldn't. "House Judiciary" doesn't "rule" anything. Would you please stop pretending that some congressional committee gets to interpret the constitution by writing a report?"

So 15 member of congress who were involved in the adoption, one who wrote significant passages even, are not qualified to interpret their own work? Also, didn't the judiciary interpret law all the time in determining proposed acts of congress were constitutional or not?

I'll take the word of 15 men who were involved in the actual writing and adoption of some law or amendment over what 5 "thinks" they meant 100 years later.

David M. Nieporent also muttered: "If we care what Bingham said, Bingham explicitly said that the 14th was designed and intended to incorporate the BoR."

Can you point us to the exact words he used that said the 14th was designed to incorporate the the BOR's to act against state citizens within their own state of residence?
10.13.2008 8:50am
Happyshooter:
Why is the 6th such a nasty circuit, anyway?

I'd hate to attend a 6th Circuit Judicial Conference. The luncheon must turn into a big food fight.


Take a look at the University of Michigan AA case sometime. It is really bad here, but that case was third world type bad.
10.13.2008 9:47am
Oren:

I'll take the word of 15 men who were involved in the actual writing and adoption of some law or amendment over what 5 "thinks" they meant 100 years later.

Nobody (besides you) claims to interpret the constitution by the rubric of how dead people, had they theoretically been alive today to be appraised of the case or controversy, would apply the law. That is not, and has never been, the method by which the Constitution is applied.
10.13.2008 1:04pm
J. Aldridge:
So Oren, how do you interpret the 14th amendment to mean, in your own words, "grants individuals broad rights, made applicable to the states by the 14A" in the face of the fact the amendment is wholly silent on the entire BOR's except due process?
10.13.2008 1:42pm
Oren:
Start by reading Meyer v. Nebraska and Peirce v. Society of Sisters.
10.13.2008 4:02pm
J. Aldridge:
In Meyer the court attempted to define due process "liberty" in terms of privileges and immunities of US Citizens. Bizarre anyone would read anything into this rulings obvious mix-up.
10.13.2008 4:35pm
Oren:
Yes, bizarre indeed that you can't understand the basis of much of our modern jurisprudence. Might I suggest a career in some other field instead?
10.13.2008 4:43pm
J. Aldridge:
Uh Oren? The problem in such brief rulings is that there was no basis in any kind of jurisprudence known to mankind! LMAO!!
10.13.2008 5:01pm
Oren:
Meyers and Pierce are probably the most cited 14A cases -- to claim that they don't lay down a jurisprudence is beyond belief.

I understand that you disagree, as do many other reasonable people. Where you part company with reasonable people, however, is the claim that those with whom you disagree have no claim at all (e.g. no jurisprudence known to mankind).
10.13.2008 5:06pm
J. Aldridge:
MALINSKI et al. v. PEOPLE OF STATE OF NEW YORK (1945): “To suppose that ‘due process of law’ meant one thing in the Fifth Amendment and another in the Fourteenth is too frivolous to require elaborate rejection.”

Oren thrives on the "frivolous."
10.13.2008 5:29pm
J. Aldridge:

What substantive due process is is quite simple — the Constitution has a Due Process Clause, which says that no person shall be deprived of life, liberty or property without due process of law. Now, what does this guarantee? Does it guarantee life, liberty or property? No, indeed! All three can be taken away. You can be fined, you can be incarcerated, you can even be executed, but not without due process of law. It's a procedural guarantee. But the Court said, and this goes way back, in the 1920s at least, in fact the first case to do it was Dred Scott. But it became more popular in the 1920s. The Court said there are some liberties that are so important, that no process will suffice to take them away. Hence, substantive due process.

Now, what liberties are they? The Court will tell you. Be patient. When the doctrine of substantive due process was initially announced, it was limited in this way, the Court said it embraces only those liberties that are fundamental to a democratic society and rooted in the traditions of the American people.

Then we come to step three. Step three: that limitation is eliminated. Within the last 20 years, we have found to be covered by due process the right to abortion, which was so little rooted in the traditions of the American people that it was criminal for 200 years; the right to homosexual sodomy, which was so little rooted in the traditions of the American people that it was criminal for 200 years. So it is literally true, and I don't think this is an exaggeration, that the Court has essentially liberated itself from the text of the Constitution, from the text and even from the traditions of the American people.

--Antonin Scalia
10.13.2008 5:43pm
Oren:
See, Scalia is a reasonable person with whom I (and a majority of his fellow Justices) happen to disagree. As a matter of binding law, the 14A protects quite a bit more than Scalia is willing to admit.

Now, since you seem to want to play the quoting game, I will oblige your request:

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.
10.13.2008 8:05pm
Oren:
Just one more, since you seem so eager to play

Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

A more appropriate statement of a Constitution that is a pact with the future probably cannot be found.
10.13.2008 8:07pm
J. Aldridge:
Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight.


Huh? It was always fully understood the Fifth Amendment's life, liberty and property and due process was a direct import of article 39 of the Magna Carta and the common law controlled the meaning.

When Bingham was asked what he meant by the words "due process" he replied: "I reply to the gentleman, the courts have settled that long ago, and the gentleman can go and read their decisions."

He went on a half dozen times to say no state may deny to any person life, liberty and property without due process were the words of the Magna Carta, Article 39.

Because the language was identical to the Fifth Amendment and settled to be the words of the Magna Carta, there was little point in being more specific.

The word "liberty" always was fully understood to mean personal liberty as opposed to civil liberty. The writ of habeas corpus always protected ones personal liberty and not ones civil liberty. Did anyone ever file an habeas corpus to be relieved of some burden of a civil law? NOOOOO!!!!
10.13.2008 10:12pm
Rodger Lodger (mail):
I thought TROs weren't appealable, only preliminary injunctions.
10.14.2008 11:26am
M:
In my opinion, the Sixth Circuit is so nasty because of a deep split between the liberals and the conservatives, and the liberals' penchant for bending the rules to get the results they want. I would single out Moore, Merritt, and Martin as some of the worst offenders. And Clay. How could one forget Clay. Nasty doesn't begin to describe that guy.

The above is my own personal opinion. I am positive others would agree with my first proposition and pin the nastiness on the conservative wing. So be it.

Where the cases get interesting is when the Circuit splits on the North/South axis rather than the ideological axis. Sometimes a judge from Kentucky or Tennessee has more in common with and will agree with his or her fellow Kentuckians or Tennesseans than a Michiganer or Ohioan coming from the same political bent.
10.14.2008 5:38pm