In a great post on Philadelphia Magazine’s Philly Post, former news anchor Larry Mendte asks why there isn;t more outrage here in Philadelphia in response to the significant tax increases that City Council has dumped on us in what will surely be a losing effort to try and shore up the City’s woeful fiscal situation. Where, asks Mendte, is our Rand Paul? Mendte is right. At a time when the City is teetering on a fiscal precipice, with a shrinking tax base and a miserable business climate that os getting worse, Council and the Mayor decide to hike taxes. Brilliant. I suppose it is completely lost on the geniuses on City Council and in the Mayor’s office that the City is in the mess its in NOT because those of us who live here and do business here are taxed too little. Philadelphia is a basket case because it is probably the most inhospitable place in which to do business this side of Caracas. Instead of jacking up property taxes and heaping more costs on the City’s productive citizens, or looking more closely for ways to reduce the size of government and run its operations more efficiently, the City should be looming to expand its tax base by making itself an attractive place in which to start and run a business. An expanding tax base will provide more than enough revenue to run the City. But not here. Instead, Mayor Nutter and the dopes on City Council choose to perpetuate discredited and failed fiscal policies, to all of our detriment. Until the City government realizes that its tax and regulatory structure have made it too expensive and complicated to start and run a business here, and do something about it, Philadelphia will continue to deteriorate and circle the drain. I only hope that its not too late when we find our Rand Paul.

One of the longest running debates in American politics – and one on which the conservative side has fairly consistently prevailed – involves the proper role of the courts in our Constitutional system. Polls have consistently shown that a solid majority of the electorate agrees that the courts should limit themselves toppling the law, and should refrain from creating rights. The latter is a function that is, under traditional American political theory, properly reserved to the legislature. This notion – that courts should not involve themselves in creating new positive rights – has often been labeled with the shorthand term “judicial restraint.” Recognizing that they’ve lost the debate as currently framed, and fearful that the more ambitious aspects of the “progressive” agenda may not fare so well in the courts, the Obama Administration, and its friends in legal commentary circles, are now seeking to change the terms of the debate, or, perhaps more accurately, to change the meaning of the terms about which we are debating.Obama’s new riff, designed to make himself appear to be the true “conservative” and to paint the current Supreme Court as radical activists, is that “judicial restraint” requires courts to defer to the legislature when reviewing duly enacted legislation even, presumably, when the legislation under consideration plainly violates the Constitution. Jeffrey Toobin, a consistent Obama ally, adds his voice to the left’s newfound love for “judicial restraint” in a piece in the May 24 issue of The New Yorker.

Toobin quotes Obama to the effect that “an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically.” Toobin then opines that the Roberts Court has betrayed itself as an “activist” court through its decisions striking down portions of the McCain-Feingold law, certain pieces of local legislation imposing quotas in public school enrollment and the District of Columbia’s ban on handgun ownership. The clear objective of Toobin, and those who write in a similar vein, is to discredit these decisions and the jurisprudential principles underlying them, as “activist,” and to lay the groundwork for a defense of the “progressive” agenda in part based on a plea for judicial restraint. Toobin – and Obama – however, are advancing a flawed argument, and are doing so disingenuously.

The left’s notion of judicial restraint, revealed through his definition of “activist,” might hold truck – might – where the legislature takes seriously its own independent responsibility to faithfully interpret the Constitution and to refrain from enacting into law measures that plainly violate rights expressly bestowed by the Constitution. None of the matters for which Toobin takes the Roberts Court to task, however, meets this definition. All were plainly violative of explicit limitations on legislative powers set forth in the Constitution and were rightly invalidated. Substantial portions of Obama’s health care opus may well be deemed to be similarly flawed which is, of course, the entire point to the left’s recent attempts to claim the mantle of “judicial restraint.” Restraint is indeed a quality to be encouraged where the legislature has taken its obligations seriously and has acted with restraint itself and shown due deference to the rights bestowed upon the people and the States. Where Congress, or any other legislative body, has plainly overstepped its bounds and enacted a measure that plainly violates the Constitution, the Obama notion of “restraint” should cease to govern. In such circumstances, the courts have an independent obligation to vindicate the rights of the people as expressed in the Constitution by invalidating the offending legislation. Such decisions are by no means “activist,” in the way that the efforts of the Warren Court or Justice Kennedy to create new positive rights out of whole cloth were, and the act of deferring to the legislators who pass such laws is not “restraint,” it is cowardice.

If Obama, and Toobin, were willing to decry the kinds of activists who find in the Constitution “rights” that appear nowhere in the text and which cannot be understood to be Constitutionally protected under any legitimate interpretive theory, then they would, on that point, find me an ally. But I wouldn’t hold my breath waiting for them to take that leap. Those kinds of activists are just fine by them, so long as the “rights” that are being created square with the progressive agenda.

I’d like to take this opportunity to congratulate my good friend, Travis Laster, on becoming the newest member of the Delaware Court of Chancery. Travis was sworn in today, and replaces retired Vice Chancellor Lamb on the nation’s premier business law court. Travis is an exceptionally talented lawyer, and a good man. I have every confidence that he will be an excellent judge. Congratulations, Vice Chancellor, and good luck!

I’d like to extend my belated congratulaions to Walter Olson and the crew at Overlawyered on their 1oth anniversary which, I understand, was yesterday. Overlawtered is generally acknowledged as the first legal blog ( or blawg, as some misguided souls insist). After 10 years its still must reading, thanks in large part to Walter Olson, its driving force. Congratulaions, friends!

On this weekend’s installment of C-SPAN’s “America and the Courts” Justice Antonin Scalia spoke to and took questions from a group of high school students from Virginia (you can view the program at this link for a limited period of time). I highly recommend that you take a look if you have any interest in the Supreme Court. 

In a not necessarily litigation related vein, I am very pleased to pass along the news that Feddie, the publisher of the Southern Appeal blog, has decided to resume blogging, nearly a year after shutting Southern Appeal down for a hiatus. Hope everyone will check in and see what Feddie’s got on his mind these days. Welcome back, Feddie!

An American judge ordered Barry Bonds’ grand-jury testimony to be unsealed and asked prosecutors to re-write the perjury case against Major League Baseball’s home-run king, the San Francisco Chronicle reported Friday. Judge Susan Illston ordered the unsealing of Bonds’ 2003 testimony during the federal court hearing at the US District Court building.

She also criticized the prosecutors’ four-count indictment, saying it needed to be revised because it contained alleged offences that were improperly lumped together.

Bonds’ lawyers tried Friday to get Illston to throw out the case by claiming prosecutors had asked Bonds “ambiguous” questions over four years ago when the former San Francisco Giant slugger testified before a grand jury probe into the BALCO steroid scandal.

Bonds did earn a minor victory by getting the judge to admit there were flaws in the indictment.

Illston did not give a date for the testimony to be unsealed but she did set another hearing for March 21.

Bonds faces four counts of perjury and one count of obstruction of justice for allegedly lying to a grand jury about his use of performance enhancing drugs.

Bonds broke Hank Aaron’s revered all-time home run record by hitting his 756th career blast last August 7 against the Washington Nationals.

He finished the 2007 season with 762 career home runs.

The 43-year-old is a free agent after the Giants let him go at the end of last season, and he is not currently on any team’s roster.

Source: The Associated Press

When Roger Clemens appears before Congress this morning to testify about steroid use, one of the many dark suited men with him will be Lanny Breuer, a partner at the Washington law firm Covington & Burling. What makes this especially interesting is that Covington represents Major League Baseball. In essence, then, Covington is representing a client – Clemens – in refuting charges levied against him in the Mitchell Report, which was commissioned by Covington’s client, MLB. Conflict? Maybe not technically, but it sure appears to be a conflict. According to The American Lawyer, MLB is pretty peeved that MLB took on the Clemens representation. While taking on Clemens is probably not unethical, I can’t say I blame MLB. That said, I’ll sure be watching tomorrow as Clemens and his former trainer, who has flatly contradicted Clemens’ claim that he never used performance enhancing drugs, both testify. Nothing like a potential high profile instance of perjury committed on live television to capture the imagination. And for what its worth, I think Clemens was juiced.

I would like to extend a very belated welcome to those of you who are visiting here from the Illinois Trial Practice Blog (which, judging from the traffic statistics I have seen, is quite a few of you), and would like to thank the publisher of that fine blog, a link to which I have added to my blogroll, for his link to my post on Judge Posner’s trenchant writing advice to practitioners. Welcome.

The Wall Street Journal yesterday ran an op-ed piece by former Solicitor General Ted Olson in which Olson speculates about the possible legal hijinks that could result from a continuing nomination deadlock between Democrat candidates Hillary Clinton and Barack Obama. While I disagree with Olson’s implication (unintended, I expect) that the Electoral College system is somehow comparable to the Democrats nominating process in its capacity for producing what he describes as “Rube Goldbergesque” results, I nonetheless found Olson’s analysis interesting. If nothing else, the current nominating contests – particularly on the Democrat side – highlight the fact that the nation is divided, at least politically, no less closely than it was in 2000. Should Mr.Obama and Ms. Clinton find themselves in court we will no doubt find, as we did in Florida in 2000, that the law is not a tool that is very well suited to resolving such political divisions.