Today at the Supreme Court, June 29, 2009

Cuomo v. Clearing House Assn., L.L.C., Docket No. 08-453.
    Held: The Comptroller's regulation purporting to pre-empt state law enforcement is not a reasonable interpretation of the NBA [12 U.S.C. §484(a)].
    SCALIA, J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. THOMAS, J., filed an opinion concurring in part and dissenting in part, in which ROBERTS, C.J., and KENNEDY and ALITO, JJ., joined.

Ricci v. DeStefano, Docket No. 07-1428.
    Held: The City's action in discarding the tests violated Title VII.
    KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, THOMAS, and ALITO, JJ., joined. SCALIA, J., filed a concurring opinion. ALITO, J., filed a concurring opinion, in which SCALIA and THOMAS, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined.

Citizens United v. FEC To Be Reargued

According to SCOTUSblog, Citizens United v. FEC will be reargued, and the Court has asked the parties to weigh in on this question: "For the disposition of this case, should the Court overrule either or both Austin v. Michigan Chamber of Commerce and the part of McConnell v. FEC which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002?"

An interesting twist (albeit, less interesting than an actual decision). Both cases have been much-maligned by the Court's more conservative justices, so it will be fascinating to see how this plays out.

Today at the Supreme Court, June 25, 2009

Melendez-Diaz v. Massachusetts, Docket No. 07-591.
    Held: The admission of the certificates violated petitioner's Sixth Amendment right to confront the witnesses against him.
    SCALIA, J., delivered the opinion of the Court, in which STEVENS, SOUTER, THOMAS, and GINSBURG, JJ., joined. THOMAS, J., filed a concurring opinion. KENNEDY, J., filed a dissenting opinion, in which ROBERTS, C.J., and BREYER and ALITO, JJ., joined.

Safford Unified School Dist. #1 v. Redding, Docket No. 08-479.
    Held:
    1. The search of Savana's underwear violated the Fourth Amendment.
    2. Although the strip search violated Savana's Fourth Amendment rights, petitioners Wilson, Romero, and Schwallier are protected from liability by qualified immunity because "clearly established law [did] not show that the search violated the Fourth Amendment," Pearson v. Callahan, 555 U.S. ___, ___.
    3. The issue of petitioner Safford's liability under Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 694, should be addressed on remand.
    SOUTER, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, KENNEDY, BREYER, and ALITO, JJ., joined, and in which STEVENS and GINSBURG, JJ., joined as to Parts I–III. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG, J., joined. GINSBURG, J., filed an opinion concurring in part and dissenting in part. THOMAS, J., filed an opinion concurring in the judgment in part and dissenting in part.

Atlantic Sounding Co. v. Townsend, Docket No. 08-214.
    Held: Because punitive damages have long been an accepted remedy under general maritime law, and because neither Miles v. Apex Marine Corp., 498 U.S. 19, nor the Jones Act altered this understanding, punitive damages for the willful and wanton disregard of the maintenance and cure obligation remain available as a matter of general maritime law.
    THOMAS, J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. ALITO, J., filed a dissenting opinion, in which ROBERTS, C.J., and SCALIA and KENNEDY, JJ., joined.

Horne v. Flores, Docket No. 08-289.
    Held:
    1. The superintendent has standing.
    2. The lower courts did not engage in the proper analysis under Rule 60(b)(5).
    3. On remand, if petitioners press their objection to the injunction as it extends beyond Nogales, the lower courts should consider whether the District Court erred in entering statewide relief. . . . Unless the District Court concludes that Arizona is violating the EEOA statewide, it should vacate the injunction insofar as it extends beyond Nogales.
    ALITO, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, KENNEDY, and THOMAS, JJ., joined. BREYER, J., filed a dissenting opinion, in which STEVENS, SOUTER, and GINSBURG, JJ., joined.

All of the remaining opinions for the 2008 Term will be released on Monday.

New Election Map

Now online: 1800 U.S. Presidential Election: Virginia Results.

Seven Cases Remain

The Supreme Court's 2008 term is almost over. Counting consolidated cases as one, seven have yet to be decided:

Melendez-Diaz v. Massachusetts, No. 07-591 (Argued 11/10/08).
    Question Presented: Whether a state forensic analyst's laboratory report prepared for use in a criminal prosecution is "testimonial" evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004).

Atlantic Sounding Co. v. Townsend, No. 08-214 (Argued 03/02/09).
    Question Presented: May a seaman recover punitive damages for the willful failure to pay maintenance and cure? The Eleventh Circuit's decision below holds in the affirmative, but conflicts with the Second, Third, Fifth and Ninth Circuits as well as two state courts of last resort, the reasoning of Miles v. Apex Marine Corp., 498 U.S. 19 (1990), and Vaughan v. Atkinson, 369 U.S. 527 (1962).

Citizens United v. FEC, No. 08-205 (Argued 03/24/09).
    Questions Presented:
    1. Whether all as-applied challenges to the disclosure requirements (reporting and disclaimers) imposed on "electioneering communications" by the Bipartisan Campaign Reform Act of 2002 ("BCRA") were resolved by McConnell's statement that it was upholding the disclosure requirements against facial challenge "for the entire range of electioneering communications' set forth in the statute." Mem. Op. I, App. 15a (quoting McConnell v. FEC, 540 U.S. 93, 196 (200)).
    2. Whether BCRA's disclosure requirements impose an unconstitutional burden when applied to electioneering communications protected from prohibition by the appeal-to-vote test, FEC v. Wisconsin Right to Life, 127 S. Ct. 2652, 2667 (2007) ("WRTL II"), because such communications are protected "political speech," not regulable "campaign speech," id. at 2659, in that they are not "unambiguously related to the campaign of a particular federal candidate," Buckley v. Valeo, 424 U.S. 1, 80 (1976), or because the disclosure requirements fail strict scrutiny when so applied.
    3. Whether WRTL II's appeal-to-vote test requires a clear plea for action to vote for or against a candidate, so that a communication lacking such a clear plea for action is not subject to the electioneering communication prohibition. 2 U.S.C. § 441b.
    4. Whether a broadcast feature-length documentary movie that is sold on DVD, shown in theaters, and accompanied by a compendium book is to be treated as the broadcast "ads" at issue in McConnell, 540 U.S. at 126, or whether the movie is not subject to regulation as an electioneering communication.

Horne v. Flores, No. 08-289; Speaker of the Arizona House v. Flores, No. 08-294 (Argued 04/20/09).
    Questions Presented, No. 08-289:
    1. By interpreting the phrase "appropriate action" under Section 1703(f) of the Equal Education Opportunity Act as a requirement that the State of Arizona provide for a minimum amount of funding specifically allocated for English Language Learner programs statewide, did the Ninth Circuit violate the doctrine prohibiting federal courts from usurping the discretionary power of state governments to determine how to appropriately manage and fund their public education systems?
    2. Should the phrase "appropriate action" as used in Section 1703(f) of the Equal Education Opportunity Act be interpreted consistently with the No Child Left Behind Act of 2001, where both Acts have the same purpose with respect to English Language Learners and the NCLB provides specific standards for the implementation of adequate English Language Learner programs, but the EEOA does not?
    Questions Presented, No. 08-294:
    1. Whether a federal-court injunction seeking to compel institutional reform should be modified in the public interest when the original judgment could not have been issued on the state of facts and law that now exist, even if the named defendants support the injunction.
    2. Whether compliance with NCLB's extensive requirements for English language instruction is sufficient to satisfy the EEOA's mandate that States take "appropriate action" to overcome language barriers impeding students' access to equal educational opportunities.

Safford Unified School Dist. #1 v. Redding, No. 08-479 (Argued 04/21/09).
    Questions Presented:
    1. Whether the Fourth Amendment prohibits public school officials from conducting a search of a student suspected of possessing and distributing a prescription drug on campus in violation of school policy.
    2. Whether the Ninth Circuit departed from established principles of qualified immunity in holding that a public school administrator may be liable in a damages lawsuit under 42 U.S.C. § 1983 for conducting a search of a student suspected of possessing and distributing a prescription drug on campus.

Ricci v. DeStefano, No. 07-1428; No. 08-328 (Argued 04/22/09).
    Questions Presented, No. 07-1428:
    1. When an otherwise valid civil service selection process yields unintended racially disproportionate results, may municipalities reject the results and the successful candidates for reasons of race absent the demonstration required by 42 U.S.C. §2000e- 2(k)?
    2. Does 42 U.S.C. §2000e-2(l) which makes it unlawful for employers "to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race ... ," permit employers to refuse to act on the results of such tests for reasons of race?
    3. If, citing the public interest in eradicating political patronage, racism and corruption in civil service, a state's highest court mandates strict compliance with local laws requiring race-blind competitive merit selection procedures, does 42 U.S.C. §2000e-7 permit federal courts to relieve municipalities from compliance with such laws?
    Questions Presented, No. 08-328:
    1. When a content-valid civil-service examination and race-neutral selection process yield unintended racially disproportionate results, do a municipality and its officials racially discriminate in violation of the Equal Protection Clause or Title VII when they reject the results and the successful candidates to achieve racial proportionality in candidates selected?
    2. Does an employer violate 42 U.S.C. §2000e-2(l), which makes it unlawful for employers "to adjust the scores of, use different cutoff scores for, or otherwise alter the results of, employment related tests on the basis of race," when it rejects the results of such tests because of the race of the successful candidates?

Cuomo v. Clearing House Assn., L.L.C., No. 08-453 (Argued 04/28/09).
    Questions Presented:
    1. Whether 12 C.F.R. § 7.4000 is entitled to judicial deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
    2. Whether 12 C.F.R. § 7.4000 is invalid because it is inconsistent with the authoritative construction of the National Bank Act by this Court in First National Bank in St. Louis v. Missouri, 263 U.S. 640 (1924).

The Power to Tax as the Power to Destroy

"The power to tax is the power to destroy." This famous adage is often attributed to John Marshall, but there are two problems with that.

The first is that Marshall's actual statement was slightly different. It was "not to be denied," he wrote, that "the power to tax involves the power to destroy," McCulloch v. Maryland, 17 U.S. 316, 431 (1819) (emphasis mine).*

More importantly, Marshall simply borrowed the phrase from Daniel Webster, who made a slightly less doctrinaire, but otherwise identical, statement during oral argument: "An unlimited power to tax involves, necessarily, a power to destroy; because there is a limit beyond which no institution and no property can bear taxation." McCulloch, 17 U.S. at 327 (Webster, for the plaintiff in error).

Yes, these errors go way back. But they're errors, nonetheless.

Obama Signs 'Anti-Smoking Bill'

This AP story is, to be blunt, dreadful. In what (alas!) is probably not a world record, the author manages to go on for some eight paragraphs without describing what the legislation actually does.

Better late than never, of course:

The new law bans candy and fruit flavors in tobacco products, and it limits advertising that could attract young people.

The Family Smoking Prevention and Tobacco Control Act also allows the FDA to lower the amount of addiction-causing nicotine in tobacco products and block misleading labels such "low tar" and "light." Tobacco companies also will be required to cover their cartons with large graphic warnings.

The law won't let the FDA ban nicotine or tobacco outright.

Today at the Supreme Court, June 22, 2009

Northwest Austin Municipal Util. Dist. No. One v. Holder, Docket No. 08-322.
    Held:
    1. The Court will not shrink from its duty "as the bulwark of a limited Constitution against legislative encroachments," The Federalist No. 78, but "[i]t is . . . well established . . . that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case," Escambia County v. McMillan, 466 U.S. 48, 51. Here, the district also raises a statutory claim that it is eligible to bail out under §§ 4 and 5 [of the Voting Rights Act], and that claim is sufficient to resolve the appeal.
    2. The Act must be interpreted to permit all political subdivisions, including the district, to seek to bail out from the preclearance requirements.
    ROBERTS, C.J., delivered the opinion of the Court, in which STEVENS, SCALIA, KENNEDY, SOUTER, GINSBURG, BREYER, and ALITO, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment in part and dissenting in part.

Forest Grove School Dist. v. T. A., Docket No. 08-305.
    Held: IDEA [the Individuals with Disabilities Education Act] authorizes reimbursement for private special-education services when a public school fails to provide a FAPE and the private-school placement is appropriate, regardless of whether the child previously received special-education services through the public school.
    STEVENS, J., delivered the opinion of the Court, in which ROBERTS, C.J., and KENNEDY, GINSBURG, BREYER, and ALITO, JJ., joined. SOUTER, J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined.

Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, Docket No. 07-984.
    Held:
    1. The Corps [Army Corps of Engineers], not the EPA, has authority to permit the slurry discharge.
    2. The Corps acted in accordance with law in issuing the slurry discharge permit to Coeur Alaska.
    KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C.J., and THOMAS, BREYER, and ALITO, JJ., joined, and in which SCALIA, J., joined in part. BREYER, J., filed a concurring opinion. SCALIA, J., filed an opinion concurring in part and concurring in the judgment. GINSBURG, J., filed a dissenting opinion, in which STEVENS and SOUTER, JJ., joined.

Today at the Supreme Court, June 18, 2009

District Attorney's Office for Third Judicial Dist. v. Osborne, Docket No. 08-6.
    Held: Assuming Osborne's claims can be pursued using §1983, he has no constitutional right to obtain postconviction access to the State's evidence for DNA testing.
    ROBERTS, C.J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined. ALITO, J., filed a concurring opinion, in which KENNEDY, J., joined, and in which THOMAS, J., joined as to Part II. STEVENS, J., filed a dissenting opinion, in which GINSBURG and BREYER, JJ., joined, and in which SOUTER, J., joined as to Part I. SOUTER, J., filed a dissenting opinion.

Yeager v. United States, Docket No. 08-67.
    Held: An apparent inconsistency between a jury's verdict of acquittal onsome counts and its failure to return a verdict on other counts does not affect the acquittals' preclusive force under the Double Jeopardy Clause.
    STEVENS, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SOUTER, GINSBURG, and BREYER, JJ., joined, and in which KENNEDY, J., joined as to Parts I–III and V. KENNEDY, J., filed an opinion concurring in part and concurring in the judgment. SCALIA, J., filed a dissenting opinion, in which THOMAS and ALITO, JJ., joined. ALITO, J., filed a dissenting opinion, in which SCALIA and THOMAS, JJ., joined.

Travelers Indemnity Co. v. Bailey, Docket No. 08-295.
    Held: The terms of the injunction bar the Direct Actions against Travelers, and the finality of the Bankruptcy Court's 1986 Orders generally stands in the way of challenging their enforceability.
    SOUTER, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, KENNEDY, THOMAS, BREYER, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion, in which GINSBURG, J., joined.

Gross v. FBL Financial Services, Inc., Docket No. 08-441.
    Held: A plaintiff bringing an ADEA [Age Discrimination in Employment Act] disparate-treatment claim mustprove, by a preponderance of the evidence, that age was the "but-for" cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.
    THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, KENNEDY, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion, in which SOUTER, GINSBURG, and BREYER, JJ., joined. BREYER, J., filed a dissenting opinion, in which SOUTER and GINSBURG, JJ., joined.

Today at the Supreme Court, June 15, 2009

Polar Tankers, Inc. v. City of Valdez, Docket No. 08-310.
    Held: The judgment is reversed, and the case is remanded.
    BREYER, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, and II–B–1, in which SCALIA, KENNEDY, GINSBURG, and ALITO, JJ., joined, and an opinion with respect to Part II–B–2, in which SCALIA, KENNEDY, and GINSBURG, JJ., joined. ROBERTS, C.J., filed an opinion concurring in part and concurring in the judgment, in which THOMAS, J., joined. ALITO, J., filed an opinion concurring in part and concurring in the judgment. STEVENS, J., filed a dissenting opinion, in which SOUTER, J., joined.

Nijhawan v. Holder, Docket No. 08-495.
    Held: [8 U.S.C. §1101(a)(43)](M)(i)'s $10,000 threshold refers to the particular circumstances in which an offender committed a fraud or deceit crime on a particular occasion rather than to an element of the fraud or deceit crime.
    BREYER, J., delivered the opinion for a unanimous Court.

A Critical Guide to "The Federalist"

This is the first in what will be a series of posts dealing with the famous Federalist Papers.

It has now been more than 220 years since "The FŒDERALIST. No. I" made its debut in the Independent Journal on October 27, 1787. That marked the beginning of a series of 85 essays (84, if one adheres to the newspapers) which have since become an American classic. Perhaps the single most famous "text" of American constitutional thought, The Federalist is adored by political scientists, historians, and legal theorists alike.*

Truth be told, it's doubtful whether The Federalist deserves its titanic reputation. The essays are well-written and often insightful, but their usefulness in understanding the debate on the Constitution is far more limited than is commonly supposed. They are but 85 of the countless essays on the Constitution that were published in the run-up to ratification, and they probably weren't all that widely read. Elaine F. Crane (1964, 591); Larry D. Kramer (1999, 665). Consider, too, the timeline: Alexander Hamilton, James Madison, and John Jay were barely a fourth through the series when New Jersey became the third state to ratify the Constitution; and by the time famous No. 78 appeared in print in late May,† eight states—just one short of the necessary nine—had already ratified. Gregory E. Maggs (2007, 826–827). Any serious attempt to place the Constitution in historical context must go well beyond The Federalist.

But if The Federalist isn't the Alpha and the Omega of originalist research, it is still an intelligent and learned work. Even after 220 years, the arguments of Hamilton, Madison, and Jay are often surprisingly fresh and relevant. If the essays told us literally nothing about the Constitution's original public-meaning, "Publius" would still warrant our attention.

In a recurring feature here at Centanium, I will comment on and analyze The Federalist one essay at a time. I will not shy away from offering criticism where I think it's warranted. Even classics can have shortcomings; there is no reason to suppose that if it's in The Federalist, it must make sense. At their best, Hamilton, Madison, and Jay are persuasive. But they are by no means always at their best.

How True

Wrote Edward Gibbon:

Trajan was ambitious of fame; and as long as mankind shall continue to bestow more liberal applause on their destroyers than on their benefactors, the thirst of military glory will ever be the vice of the most exalted characters.

Quote of the Term?

Writes Justice Scalia in his Caperton dissent:

A Talmudic maxim instructs with respect to the Scripture: "Turn it over, and turn it over, for all is therein." The Babylonian Talmud, Tractate Aboth, Ch. V, Mishnah 22 (I. Epstein ed. 1935). Divinely inspired text may contain the answers to all earthly questions, but the Due Process Clause most assuredly does not. The Court today continues its quixotic quest to right all wrongs and repair all imperfections through the Constitution.

Today at the Supreme Court, June 8, 2009

Republic of Iraq v. Beaty, Docket No. 07-1090.
    Held: Iraq is no longer subject to suit in federal court.
    SCALIA, J., delivered the opinion for a unanimous Court.

Caperton v. A. T. Massey Coal Co., Docket No. 08-22.
    Held: In all the circumstances of this case, due process requires recusal.
    KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. ROBERTS, C.J., filed a dissenting opinion, in which SCALIA, THOMAS, and ALITO, JJ., joined. SCALIA, J., filed a dissenting opinion.

United States v. Denedo, Docket No. 08-267.
    Held:
    1. This Court has subject-matter jurisdiction under 28 U.S.C. §1259(4), which permits it to review CAAF decisions in cases "in which [that court] granted relief."
    2. Article I military courts have jurisdiction to entertain coram nobis petitions to consider allegations that an earlier judgment of conviction was flawed in a fundamental respect.
    KENNEDY, J., delivered the opinion of the Court, in which STEVENS, SOUTER, GINSBURG, and BREYER, JJ., joined. ROBERTS, C.J., filed an opinion concurring in part and dissenting in part, in which SCALIA, THOMAS, and ALITO, JJ., joined.

United States ex rel. Eisenstein v. City of New York, Docket No. 08-660.
    Held: When the United States has declined to intervene in a privately initiated FCA action, it is not a "party" to the litigation for purposes of either [28 U.S.C.] §2107 or Rule 4. Because petitioner's time for filing a notice of appeal in this case was therefore 30 days, his appeal was untimely.
    THOMAS, J., delivered the opinion for a unanimous Court.

Boyle v. United States, Docket No. 07-1309.
    Held:
    1. An association-in-fact enterprise under RICO must have a "structure," but the pertinent jury instruction need not be framed in the precise language Boyle proposes, i.e., as having "an ascertainable structure beyond that inherent in the pattern of racketeering activity in which it engages."
    2. The instructions below were correct and adequate.
    ALITO, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, KENNEDY, SOUTER, THOMAS, and GINSBURG, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BREYER, J., joined.

Google Chrome

Having heard great things about Google Chrome, I decided to bite the bullet and install it. From my experience so far, it seems like a worthy challenger to Mozilla Firefox. Not only is it noticeably faster, it also has a charmingly simplistic and straightforward design.

My only major complaint is that—unless I'm missing something, which I could be—it has no search bar or equivalent feature. Sure, you can easily search Google by just typing key words into the URL box and hitting "enter." But about as often, I want to search Amazon.com or, for that matter, Google Book Search.

Update: Apparently, there is such a feature.

New SCOTUS Web Site?

The New York Times's The Ledge reports:

If you thought the demographic makeup of the Supreme Court was out of date, take a look at the court’s Web site. It’s positively pre-Cambrian.

. . . .

In a burst of reinvention, though, the high court is asking Congressional appropriators for about $800,000 to take the site in-house (in chamber?) and give it a good overhaul.

. . . .

What else can the court do to bring its site into the 21st century?

National Rifle Association v. Chicago

Yesterday, the Seventh Circuit Court of Appeals decided National Rifle Association v. Chicago (pertaining to whether the Fourteenth Amendment incorporates the Second Amendment against the states). To make a 9-page opinion even shorter, the NRA lost.

Will the Supreme Court take the case? It's impossible to know for sure, but this decision does create a circuit split. In Nordyke v. King, the Ninth Circuit held that the Fourteenth Amendment does incorporate the Second Amendment right to keep and bear arms.

Time will tell.

Today at the Supreme Court, June 1, 2009

Bobby v. Bies, Docket No. 08-598.
    Held: The Double Jeopardy Clause does not bar the Ohio courts from conducting a full hearing on Bies' mental capacity.
    GINSBURG, J., delivered the opinion for a unanimous Court.

CSX Transp., Inc. v. Hensley, Docket No. 08-1034.
    The ruling of the Tennessee Court of Appeals conflicts with Ayers. The trial court should have given the substance of the requested instructions.
    Reversed and remanded.
    PER CURIAM. STEVENS, J., and GINSBURG, J., filed dissenting opinions.