Today the Court issued two opinions and heard arguments in two cases. In the more important of its decisions, the Court put to rest, once and for all, a lawsuit that had attempted to hold anti-abortion protesters liable under RICO. Before its demise today, that suit had spanned the course of nineteen years and two previous rulings by SCOTUS in the case.
In addition to the Marshall case, the Court also heard arguments on a campaign finance case from Vermont.
More on these matters tomorrow.
Update: Possibly a mistake to say that the abortion injunction case was more important; the other case (as I'll discuss later) could potentially have had a significant impact on the law of corporate mergers. It's better to just say that the abortion case was more exciting.
Tuesday, February 28, 2006
Marshall v. Marshall...
a.k.a. the Anna Nicole Smith case, was argued in front of SCOTUS today. Substantively, the case is actually a fairly mundane dispute involving the probate exception to federal court jurisdiction. Slate provides some background on the case and a nice first-hand account of today's arguments.
Monday, February 27, 2006
More on the Cunningham case
An article from the San Francisco Chronicle gives a interesting overview of the case, including some speculation on the potential impact if SCOTUS strikes down the California sentencing system:
And that's only in California; depending on how many states have similar sentencing guidelines, Cunningham could create as much resentencing work for state courts as Booker created for federal courts.
(Via How Appealing)
Uncertainty surrounds thousands of prison sentences in California after the U.S. Supreme Court announced it would decide whether the state's 29-year-old sentencing system violates a defendant's right to a jury trial.
The court's ruling in a case from Contra Costa County, due by June 2007, could require reconsideration of at least 3,000 sentences issued since 2004 and force the state to change its law, Gerald Uelmen, a Santa Clara University law professor, said Friday.
And that's only in California; depending on how many states have similar sentencing guidelines, Cunningham could create as much resentencing work for state courts as Booker created for federal courts.
(Via How Appealing)
A Good Point
Alex raised a good criticism of my position in a comment:
Alex gets at an important question here: whether executives still have a duty to interpret the constitutionality of legislation in a system where there is judicial review. Let me respond by saying that I think that even though executives may not have the final word on constitutionality under our system, that does not necessarily mean that they do not have the duty to make the determination of whether a piece of legislation is unconstitutional. Nor does it necessarily mean that said duty is unimportant. I think that it means that the executive (or the legislature) simply does not have the last word on constitutionality in some instances.
In the final analysis, this question comes down to how one conceptualizes the process of determining a measure's constitutionality. One view is that all three branches of the government (state and federal) have the responsibility to assess constitutionality, with the judiciary having the final say if there is a dispute. In another view, the only branch with the responsibility to make that assessment is the judiciary itself. I think our history supports the former proposition, and one piece of evidence for that is the oath to uphold the constitution itself.
I think that the executive operates under less oath-related constraints than this discussion has supposed. The judiciary's role as the final arbiter for determining the constitutionality of laws has itself been constitutionalized by various Court holdings (Marbury, the Meese case, I forget the name). Therefore, to the extent that the Governor of South Dakota swears to uphold the Constitution he swears to the principles of judicial review that the Constitution, via those decisions, entails.
While his good conscience might keep him from signing or vetoing legislation that is in obvious contradiction to a Supreme Court holding, as a political officer, he is entitled to rely on the structural checks present at the very limit of executive authority, namely, the power of the other branches (in this case, perhaps, an injunction).
Alex gets at an important question here: whether executives still have a duty to interpret the constitutionality of legislation in a system where there is judicial review. Let me respond by saying that I think that even though executives may not have the final word on constitutionality under our system, that does not necessarily mean that they do not have the duty to make the determination of whether a piece of legislation is unconstitutional. Nor does it necessarily mean that said duty is unimportant. I think that it means that the executive (or the legislature) simply does not have the last word on constitutionality in some instances.
In the final analysis, this question comes down to how one conceptualizes the process of determining a measure's constitutionality. One view is that all three branches of the government (state and federal) have the responsibility to assess constitutionality, with the judiciary having the final say if there is a dispute. In another view, the only branch with the responsibility to make that assessment is the judiciary itself. I think our history supports the former proposition, and one piece of evidence for that is the oath to uphold the constitution itself.
Sunday, February 26, 2006
A Response to Tom's Response
Tom,
I agree with most of the points you made in your response and in your original post. However, let me revise and extend my remarks.
First, with regards to an executive's duty to uphold the constitution, I agree that the question of how an executive should determine whether a bill is unconstitutional is a far more difficult and controversial question than whether an executive has a duty to veto a bill once he has concluded that it is unconstitutional. The point I was attempting to make in my previous post was that Gov. Rounds has a responsibility to make that determination, to tell his constituents how he made it, and, if his determination is that it is unconstitutional, to veto it.
You're right to point out that in my last post I avoided the issue of how executives should determine the constitutionality of legislation, and more specifically whether they should look to SCOTUS precedents in a similar way that judges do. To be honest, I don't have a good, comprehensive answer to that problem, except to say that I think it's fairly clear where the extremes cases are on both ends of the line. To explain by example, if a governor faces a bill that does exactly the same thing as measures which have been consistently and decisively (ie. with little or no dissent) struck down by the Court, that's one thing. At the other extreme, if a governor is facing a bill which arguably might be unconstitutional under a SCOTUS ruling issued in 1890 and not since revisited, that's a very different case. It seems to me that the Roe/Casey line of cases is somewhere in the middle of that spectrum, and as I said, I don't have a good answer to the question of how much intellectual freedom a governor should exercise in interpreting the constitution in such a case.
Regarding the second issue of the political/legal wisdom of what South Dakota is doing, I disagree with you a bit more here. First, I don't think anyone outside the Court has any informed idea on the time frame for another opening. Stevens (for example) could retire or drop dead tomorrow, or he could become the Strom Thurmond of the Court. It really is a situation where those who are talking don't know and those who know aren't talking.
Secondly, I think the measure might make its way to SCOTUS more quickly than you assume because, as far as the lower federal courts are concerned, the law clearly contradicts the current constitutional law (Roe/Casey). Planned Parenthood, etc. will seek an injunction immediately after the S.D. bill is signed to prevent it from ever going into effect. The district court could theoretically drag its feet, but more likely it would probably issue a preliminary or permanent injunction in the challenger's favor very quickly. Likewise, the circuit court could affirm the district court quickly and without argument (what could the state possibly argue in those lower courts?). If that timeline comes to pass, SCOTUS would probably face a choice on whether to grant cert. before their summer break, and could hear the case late this year or next spring.
Finally, on the stare decisis point, I agree that Scalia and Thomas will vote to overturn without regard to any impact from another 5-4 reaffirmation of Roe/Casey. On a more normative note, I also agree that stare decisisconsiderations have little force in dealing with the current abortion precedents. Indeed, I generally place less importance on stare decisis than most others, and I think 5-4 decisions have particularly little stare decisis power. However, I guess I just don't see the benefit to launching a frontal attack on Roe/Casey again until one of the current members of the pro-Roe majority is replaced.
I agree with most of the points you made in your response and in your original post. However, let me revise and extend my remarks.
First, with regards to an executive's duty to uphold the constitution, I agree that the question of how an executive should determine whether a bill is unconstitutional is a far more difficult and controversial question than whether an executive has a duty to veto a bill once he has concluded that it is unconstitutional. The point I was attempting to make in my previous post was that Gov. Rounds has a responsibility to make that determination, to tell his constituents how he made it, and, if his determination is that it is unconstitutional, to veto it.
You're right to point out that in my last post I avoided the issue of how executives should determine the constitutionality of legislation, and more specifically whether they should look to SCOTUS precedents in a similar way that judges do. To be honest, I don't have a good, comprehensive answer to that problem, except to say that I think it's fairly clear where the extremes cases are on both ends of the line. To explain by example, if a governor faces a bill that does exactly the same thing as measures which have been consistently and decisively (ie. with little or no dissent) struck down by the Court, that's one thing. At the other extreme, if a governor is facing a bill which arguably might be unconstitutional under a SCOTUS ruling issued in 1890 and not since revisited, that's a very different case. It seems to me that the Roe/Casey line of cases is somewhere in the middle of that spectrum, and as I said, I don't have a good answer to the question of how much intellectual freedom a governor should exercise in interpreting the constitution in such a case.
Regarding the second issue of the political/legal wisdom of what South Dakota is doing, I disagree with you a bit more here. First, I don't think anyone outside the Court has any informed idea on the time frame for another opening. Stevens (for example) could retire or drop dead tomorrow, or he could become the Strom Thurmond of the Court. It really is a situation where those who are talking don't know and those who know aren't talking.
Secondly, I think the measure might make its way to SCOTUS more quickly than you assume because, as far as the lower federal courts are concerned, the law clearly contradicts the current constitutional law (Roe/Casey). Planned Parenthood, etc. will seek an injunction immediately after the S.D. bill is signed to prevent it from ever going into effect. The district court could theoretically drag its feet, but more likely it would probably issue a preliminary or permanent injunction in the challenger's favor very quickly. Likewise, the circuit court could affirm the district court quickly and without argument (what could the state possibly argue in those lower courts?). If that timeline comes to pass, SCOTUS would probably face a choice on whether to grant cert. before their summer break, and could hear the case late this year or next spring.
Finally, on the stare decisis point, I agree that Scalia and Thomas will vote to overturn without regard to any impact from another 5-4 reaffirmation of Roe/Casey. On a more normative note, I also agree that stare decisisconsiderations have little force in dealing with the current abortion precedents. Indeed, I generally place less importance on stare decisis than most others, and I think 5-4 decisions have particularly little stare decisis power. However, I guess I just don't see the benefit to launching a frontal attack on Roe/Casey again until one of the current members of the pro-Roe majority is replaced.
Re: Roe in Danger?
I had a similar thought about an executive's responsibilities to uphold the constitution when I read about the South Dakota bill. Personally, I think a governor/executive has a responsibility to veto a bill if he thinks it violates the constitution; For example, I got quite irritated with President Bush when he said that he thought the McCain-Feingold campaign finance reform bill violated the First Amendment and then signed it anyway. I don't know if South Dakota's governor is taking a similar course as Bush, or if he actually believes he is acting in accord with a "proper" reading of the constitution.
It strikes me that despite the South Dakota legislature's obvious effort to set up a test case for overturning Roe, their efforts could potentially backfire rather spectacularly. If the current pro-Roe majority (at least five justices) is still in place when/if the issue reaches the Court, those justices might choose to grant cert. and reaffirm the Roe/Casey "core holding" yet again. A result like that could only further solidify the stare decisis status of the right to abortion and make it more difficult for the Court to overturn Roe/Casey later on.
It strikes me that despite the South Dakota legislature's obvious effort to set up a test case for overturning Roe, their efforts could potentially backfire rather spectacularly. If the current pro-Roe majority (at least five justices) is still in place when/if the issue reaches the Court, those justices might choose to grant cert. and reaffirm the Roe/Casey "core holding" yet again. A result like that could only further solidify the stare decisis status of the right to abortion and make it more difficult for the Court to overturn Roe/Casey later on.
Saturday, February 25, 2006
Summary Judgment
Tom chimed in with a review/some good comments on the article attacking summary judgment that I mentioned earlier. The main portion is worth putting on the main page:
I agree with Solum that the article is remarkably persuasive. However, when your basic premise is as oddball as this article's premise, it doesn't take much persuasion to be remarkably persuasive. Its remarkable the author could make this argument at all.
I think his argument fails in a number of ways, most principally in his idea that summary judgment is somehow different from the "decisions of law" by judges in olde england. His entire article is essentially based on the idea that summary judgment is a brand new thing that the brits didn't even consider. The author tries really hard to make this distinction between what was going on in olde england at the time of the constitutional convention and what is going on now with summary judgment, but this distinction is a little shaky.
He makes the distinction between deciding a case on the law but not the facts (olde england) and the summary judgment "evidence could show" standard.
I think that the "could show" standard doesn't have the judge deciding any facts, but merely looking at what the facts could reasonably show, in the light most favorable to the non-movant. Thomas, the author, thinks this is something different from what judges did in olde england when cases were decided based on the law (with key facts agreed upon).
I think that the two are either so similar that summary judgment is certainly constitutional, or that in fact summary judgment protects litigants rights more than judges deciding cases based on the agreed upon facts, since in summary judgment the facts are viewed in favor of the non-movant.
Of course, the article mostly concentrates on showing that the SCOTUS didn't constitutionally approve summary judgment before, which is a pre-requisite to the distinctions he has to draw between olde english ideas and current ideas of summary judgment.
The article definitely is interesting though, and he is remarkably persuasive. I just think many of the distinctions he draws are false or at best vague. Your mileage may vary.
Also, I suppose that if you happened to believe in a non-originalist interpretation of the constitution, most of his arguments about what specifically the constitution meant by "the common law" would be unpersuasive to you. No olde england required if the constitution is a "living document". I only mention this because it might make his article more difficult to publish in certain circles.
For Followers of Sentencing Law
I mentioned in an earlier post that SCOTUS had granted cert. on Tuesday in yet another sentencing guidelines case, Cunningham v. California. After reading the lower court opinion, I wanted to post some more info on the case.
Cunningham involves a scumbag who was convicted of molesting his son and sentenced under the California state sentencing guidelines scheme. Those guidelines set forth three different ranges that a judge can use in sentencing: a "normal" range of years, an upper range that a judge may (but is not required) to sentence the offender in if the judge finds that certain aggravating factors were present, and a lower range that the judge may (but again is not required to) use if certain mitigating factors were present. The Cunningham trial judge made findings of fact that aggravating factors were present in the case and chose to upgrade the defendant to the higher sentencing range. The California appellate courts affirmed.
This case is potentially even more important than last year's U.S. v. Booker, which held that mandatory application of the federal sentencing guidelines- which pre-Booker required federal judges to upgrade sentences if they found the existence of certain aggravating facts- violated the Sixth Amendment rights to jury trial. However, the court did not strike down use of the federal guidelines entirely, but merely made them "advisory." Under Booker, it is clear that judges cannot be required to upgrade sentences based on their own (not a jury's) findings of fact, but there has been much controversy over the question of whether they may do so. The Booker result suggests yes; the Booker Sixth Amendment jury trial reasoning suggests no. The Cunningham case squarely presents this question.
The Court will hear the case next fall.
Update: The correct style of the Booker case is U.S. v. Booker, not Booker v. Washington (the last precedent case prior to Booker was Blakely v. Washington, hence my mistake).
Cunningham involves a scumbag who was convicted of molesting his son and sentenced under the California state sentencing guidelines scheme. Those guidelines set forth three different ranges that a judge can use in sentencing: a "normal" range of years, an upper range that a judge may (but is not required) to sentence the offender in if the judge finds that certain aggravating factors were present, and a lower range that the judge may (but again is not required to) use if certain mitigating factors were present. The Cunningham trial judge made findings of fact that aggravating factors were present in the case and chose to upgrade the defendant to the higher sentencing range. The California appellate courts affirmed.
This case is potentially even more important than last year's U.S. v. Booker, which held that mandatory application of the federal sentencing guidelines- which pre-Booker required federal judges to upgrade sentences if they found the existence of certain aggravating facts- violated the Sixth Amendment rights to jury trial. However, the court did not strike down use of the federal guidelines entirely, but merely made them "advisory." Under Booker, it is clear that judges cannot be required to upgrade sentences based on their own (not a jury's) findings of fact, but there has been much controversy over the question of whether they may do so. The Booker result suggests yes; the Booker Sixth Amendment jury trial reasoning suggests no. The Cunningham case squarely presents this question.
The Court will hear the case next fall.
Update: The correct style of the Booker case is U.S. v. Booker, not Booker v. Washington (the last precedent case prior to Booker was Blakely v. Washington, hence my mistake).
Friday, February 24, 2006
By the Way...
The Federalist Society student symposium starts tonight. It's being held at Columbia Law School this year on the topic of "International Law and the State of the Constitution." The Columbia chapter of the Federalist Society promises live blogging starting with the first panel.
Two Interesting Articles
Catching up with scholarship coverage on the Legal Theory Blog, a couple of posts in particular caught my attention. The first presents the abstract of a piece explaining the differences between "two conceptions of written constitutions that may be applied by judicial interpreters. One treats constitutional text as defining governmental powers and limitations thereon, whilst the other, more controversially, treats the text as merely illustrating broader, unwritten principles that ultimately set the scope of governmental powers." The author is Australian and compares the use of those two modes in American and Australian constitutional law.
The second new article makes an argument that summary judgment is unconstitutional under the Seventh Amendment. Haven't read it yet, but Solum (who runs the theory blog) says it's "remarkably persuasive," which means it's probably worth reading.
The second new article makes an argument that summary judgment is unconstitutional under the Seventh Amendment. Haven't read it yet, but Solum (who runs the theory blog) says it's "remarkably persuasive," which means it's probably worth reading.
Thursday, February 23, 2006
Wednesday's Opinions
Without further delay, an overview of the opinions that came out yesterday.
The most important ruling in terms of criminal law implications was Oregon v. Guzek. Per Justice Breyer, the Court concluded that a defendant does not have a Sixth Amendment right to re-introduce alibi testimony in sentencing proceedings in an attempt to show, in spite of the previous conviction at trial, that he is actually innocent. The majority opinion stated, inter alia, that the Court has never recognized a general right to introduce evidence of innocence at post-conviction sentencing proceedings. In a concurring opinion, Justice Scalia, joined by Justice Thomas, wanted the Court to go further and directly say that there is no such constitutional right.
In the category of civil procedure, in Arbaugh v. Y & H Corp. the Court dealt with a case involving a Title VII sexual harassment claim against an employer with fewer than 15 employees (by its language, Title VII only applies to employers with 15 or more employees). The Court, in a unanimous opinion by Justice Ginsburg, concluded that the 15 employee cutoff is a substantive element of the cause of action, not a rule of federal subject-matter jurisdiction. The distinction was important because while subject-matter defects can be raised at any time, failures of substantive law, under Rule 12(b)(6), must be raised before the end of trial. In the Arbaugh case, the defendant raised the defect for the first time after trial. Surprisingly, the Court promulgated what might actually be a bright line rule:
A nice case to read for any other jurisdiction junkies out there.
In a funny case involving sovereign immunity and the delivery of mail, the Court ruled in Dolan v. Postal Service that the Post Office can be sued where the negligent delivery of letters causes a slip-and-fall accident. The Federal Tort Claims Act abrogates federal sovereign immunity for many torts committed by federal agents, but the FTCA contains an exception preserving immunity for the "loss, miscarriage, or negligent transmission of letters or postal matter." Looking to the purpose of the FTCA and similar exceptions, Justice Kennedy (writing for a seven member majority) found that this preservation of immunity does not apply to slip-fall situations caused by mail delivery. Justice Thomas dissented.
In its fourth and final opinion of the day, Domino's Pizza, Inc. v. McDonald, an again unanimous court (per Justice Scalia) held, not surprisingly, that only plaintiffs who would have had contractual rights can sue under 42 U.S.C. 1981, which prohibits racial discrimination in the "making and enforcing" of contracts. Also not surprisingly, the decision reversed a Ninth Circuit ruling to the contrary.
Justice Alito did not take part in deciding any of the cases.
The most important ruling in terms of criminal law implications was Oregon v. Guzek. Per Justice Breyer, the Court concluded that a defendant does not have a Sixth Amendment right to re-introduce alibi testimony in sentencing proceedings in an attempt to show, in spite of the previous conviction at trial, that he is actually innocent. The majority opinion stated, inter alia, that the Court has never recognized a general right to introduce evidence of innocence at post-conviction sentencing proceedings. In a concurring opinion, Justice Scalia, joined by Justice Thomas, wanted the Court to go further and directly say that there is no such constitutional right.
In the category of civil procedure, in Arbaugh v. Y & H Corp. the Court dealt with a case involving a Title VII sexual harassment claim against an employer with fewer than 15 employees (by its language, Title VII only applies to employers with 15 or more employees). The Court, in a unanimous opinion by Justice Ginsburg, concluded that the 15 employee cutoff is a substantive element of the cause of action, not a rule of federal subject-matter jurisdiction. The distinction was important because while subject-matter defects can be raised at any time, failures of substantive law, under Rule 12(b)(6), must be raised before the end of trial. In the Arbaugh case, the defendant raised the defect for the first time after trial. Surprisingly, the Court promulgated what might actually be a bright line rule:
If the Legislature clearly states that a threshold limitation on a statute's scope shall count as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue. See Da Silva, 229 F. 3d, at 361 (Whether a disputed matter concerns jurisdiction or the merits (or occasionally both) is sometimes a close question.). But when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character. Applying that readily administrable
bright line to this case, we hold that the threshold number of employees for application of Title VII is an element of a plaintiff's claim for relief, not a jurisdictional issue.
A nice case to read for any other jurisdiction junkies out there.
In a funny case involving sovereign immunity and the delivery of mail, the Court ruled in Dolan v. Postal Service that the Post Office can be sued where the negligent delivery of letters causes a slip-and-fall accident. The Federal Tort Claims Act abrogates federal sovereign immunity for many torts committed by federal agents, but the FTCA contains an exception preserving immunity for the "loss, miscarriage, or negligent transmission of letters or postal matter." Looking to the purpose of the FTCA and similar exceptions, Justice Kennedy (writing for a seven member majority) found that this preservation of immunity does not apply to slip-fall situations caused by mail delivery. Justice Thomas dissented.
In its fourth and final opinion of the day, Domino's Pizza, Inc. v. McDonald, an again unanimous court (per Justice Scalia) held, not surprisingly, that only plaintiffs who would have had contractual rights can sue under 42 U.S.C. 1981, which prohibits racial discrimination in the "making and enforcing" of contracts. Also not surprisingly, the decision reversed a Ninth Circuit ruling to the contrary.
Justice Alito did not take part in deciding any of the cases.
Wednesday, February 22, 2006
A Slight Change in Plans
I'll post a summary of today's opinions tomorrow morning. By the way, thanks to everyone at WVU law who came out to our viewing of the 2005 Breyer/Scalia debate on foreign law and American constitutional interpretation. The discussion between the justices was terrific; a good time was had by all. The WVU Federalist Society is donating the DVD to the law library, and the debate can be viewed on C-Span's website here.
More Opinions
More new SCOTUS opinions today. I'll have the highlights up tonight, but if you just can't wait check out the "slip opinion" and "news wire" links to the right.
More on Tuesday's Activity
There's a nice roundup of Tuesday's SCOTUS cert. grants and opinions from SCOTUSblog here. Among the things I missed yesterday: the Court granted cert. to determine whether judicial factfinding in determined sentence "sentencing range" cases (as opposed to Booker-like sentencing guidelines cases) is constitutional. That decision could have potentially far-reaching implications.
Update: Misinterpreted SCOTUSblog on the issue in new sentencing case. See my post from Feb. 26 above.
Update: Misinterpreted SCOTUSblog on the issue in new sentencing case. See my post from Feb. 26 above.
Tuesday, February 21, 2006
Alito's First Oral Argument
A witty dispatch on the wetlands cases argued today (though I disagree with the "environmental disaster" comment) and the changing makeup of the Court.
New SCOTUS Opinions (Huzzah!)
After its usual early-February hiatus, the Court resumed its public schedule on an active note. On the same day that the Court heard arguments on the wetlands issue and granted cert. in the partial-birth abortion cases, it issued five new opinions. Three of today's decisions are per curiam opinions (meaning that they carry no formal precedential value), including a ruling discussing the Rooker-Feldman doctrine.
The Court issued two actual, precedential, signed opinions. In Buckeye Check Cashing, Inc. v. Cardegna, the Court ruled that in cases involving the validity of contracts with an arbitration provision, a defendant must raise the defense of illegality with the arbitrator and cannot file a claim in court to void the contract on that ground. Justice Thomas dissented, repeating his contention that the provisions of the Federal Arbitration Act do not apply to state court proceedings.
In the longer and more interesting opinion, Gonzales v. O Centro EspÃrita Beneficente União do Vegetal, Chief Justice Roberts, writing for unanimous court, concluded that the federal government cannot bar a small Christian sect's use of hallucinogenic tea under federal drug laws. The case is interesting primarily because it involved application of the Religious Freedom Restoration Act of 1993. To quote the opinion's syllabus:
The Court concluded that the sect's use of the tea posed no signifigant threat to the enforcement of federal drug laws.
Update: Should have metioned that Justice Alito took no part in deciding any of these cases, as he was not on the bench when they were argued.
The Court issued two actual, precedential, signed opinions. In Buckeye Check Cashing, Inc. v. Cardegna, the Court ruled that in cases involving the validity of contracts with an arbitration provision, a defendant must raise the defense of illegality with the arbitrator and cannot file a claim in court to void the contract on that ground. Justice Thomas dissented, repeating his contention that the provisions of the Federal Arbitration Act do not apply to state court proceedings.
In the longer and more interesting opinion, Gonzales v. O Centro EspÃrita Beneficente União do Vegetal, Chief Justice Roberts, writing for unanimous court, concluded that the federal government cannot bar a small Christian sect's use of hallucinogenic tea under federal drug laws. The case is interesting primarily because it involved application of the Religious Freedom Restoration Act of 1993. To quote the opinion's syllabus:
Congress enacted the Religious Freedom Restoration Act of 1993 (RFRA) in response to Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, where, in upholding a generally applicable law that burdened the sacramental use of peyote, this Court held that the First Amendment’s Free Exercise Clause does not require judges to engage in a case-by-case assessment of the religious burdens imposed by facially constitutional laws, id., at 883–890. Among other things, RFRA prohibits the Federal Government from substantially burdening a person’s exercise of religion, “even if the burden results from a rule of general applicability,” 42 U. S. C. §2000bb–1(a), except when the Government can “demonstrat[e] that application of the burden to the person (1) [furthers] a compelling government interest; and (2) is the least restrictive means of furthering
that . . . interest,” §2000bb–1(b).
The Court concluded that the sect's use of the tea posed no signifigant threat to the enforcement of federal drug laws.
Update: Should have metioned that Justice Alito took no part in deciding any of these cases, as he was not on the bench when they were argued.
Will Stenberg be Overruled?
The big news: SCOTUS has granted cert. to decide whether the federal partial-birth abortion ban is constitutional. In the Court's last major abortion case, the 2000 Stenberg v. Carhart decision, Justice O'Connor joined with the four justice "liberal" voting bloc to strike down a similar state statute. Will Justice Alito join with the four dissenters from that case in a new majority? If so, will Chief Justice Roberts push for the overruling of Stenberg, or will he try to guide the Court to a narrower outcome? Would Justice Kennedy, who dissented in Stenberg, vote to overrule, or would he uphold the previous decision under stare decisis? This case could the first real indication of the ideological direction of the Roberts Court, not to mention its significance to abortion jurisprudence.
More soon...
More soon...
Monday, February 20, 2006
Mundane But Important
Tomorrow SCOTUS will hear arguments about one of the most important property rights/federalism/environmental (depending on your point of view) issues in recent years. In Carabell v. US Army Corps of Engineers and Rapanos v. United States, the Court will take up the question of whether wetlands that are not in close proximity to navigable waters fall within federal regulations under the Clean Water Act. If the answer is no, the cases could be a sign that the new Roberts court will move further in the direction of placing more signifigant limits on federal regulatory power under the Commerce Clause. More info on the cases here and here.
Scholarship Roundup
A few of the more interesting pieces linked to on the Legal Theory Blog over the past week:
-A new paper on the basic fair adjudication and fair notice requirements inherent in the "rule of law."
-An attack on the legality of the age restrictions for rookies imposed by the NFL.
-A paper on the current state of the Supreme Court's equal protection jurisprudence.
-A critique of the "disparate impact" theory of proving discrimination.
(The links are to the posts, not the documents directly)
-A new paper on the basic fair adjudication and fair notice requirements inherent in the "rule of law."
-An attack on the legality of the age restrictions for rookies imposed by the NFL.
-A paper on the current state of the Supreme Court's equal protection jurisprudence.
-A critique of the "disparate impact" theory of proving discrimination.
(The links are to the posts, not the documents directly)
Sunday, February 19, 2006
On Another Note...
I finally remembered to add a permanent link to the absolutely, positively indispensable Legal Information Institute from Cornell University. LII has the text of all the rules of federal procedure and evidence, an annotated version of the Constitution, a page summarizing and providing examples of important legal citation rules, and lots more.
An Analysis of the NSA Wiretap Controversy
I've been meaning to post some more complete thoughts on the NSA wiretap controversy for a while, and a class discussion in Criminal Procedure last week finally spurred me into action.
Before beginning an analysis of the issues surrounding the NSA's eavesdropping, one must first recognize that much of the current discussion on the subject, on both sides, is very much off-base. On the pro-eavesdropping side (for a serious lack of a better term), many argue that the matter is settled by the question of whether the president's war powers- from Article II and/or from the Authorization for the Use of Military Force ("AUMF") Congress passed in the wake of 9/11- override the requirements imposed on the surveillance of foreign agents by Foriegn Intelligence Surveillance Act ("FISA"). On the other hand, many opponents of the eavesdropping program seem to believe that merely mentioning the words "Fourth Amendment" acts as a magical talisman that makes the NSA program unconstitutional. Both sides are right in some limited respects, but very wrong in others.
First, let's look at nature and scope of the president's power to order surveillance of the kind involved in the NSA program. Section 2 of Art. II is the "Commander and Chief" clause (my unscholarly term):
Of course, this language makes no explicit mention of intelligence collection, but such activities are an integral part of warmaking, and the law has long recognized that reality. More immediately, both the D.C. Circuit Court of Appeals and the secret FISA appellate court (albeit in dicta in one of its few unclassified opinions) have recognized that this language from Article II grants President Bush the power to command U.S. agencies in their collection of intelligence against Al Qaida, in the much the same way that he may command the U.S. Army to act against Al Qaida.
It is fairly well settled that while Congress, under Article I, governs the raising and funding of military forces, Section 2 of Article II makes the president supreme in deciding how those forces are to be used in a time of military conflict. It is obvious that the United States is in a state of military conflict with Al Qaida, a conflict which Congress recognized and authorized by passing the AUMF. The importance of the AUMF in the current controversy is not in whether its language alone impliedly authorizes the NSA's program; that question is actually quite irrelevant. Rather, the importance of the AUMF is that it essentially declares Al Qaida a military enemy of the United States. This recognition empowers the president to use his Article II Commander and Chief powers, which Congress lacks the authority to limit directly, against Al Qaida. In other words, it is the text of the constitution, not the text of the AUMF, which grants the president the power to collect intelligence against Al Qaida, and Congress lacks the authority to directly regulate the use of that power.
Now, the administration and many conservative commentators have made this point ad nausium, and, indeed, if the NSA program merely involved communications that occurred only between suspected Al Qaida personnel operating in other countries, an inquiry into the program's legality would certainly stop here. However, the NSA program is controversial exactly because it is geared toward intercepting communications between American citizens/nationals and suspected Al Qaida members abroad. And this, much to the chagrin of many conservatives, brings the Fourth Amendment into play. Under modern law, the Fourth Amendment's prohibition against "unreasonable" searches and seizures extends to telephone and electronic communications, including international communications, involving Americans. (By the way, the argument that a person who knows he is talking to an Al Qaida operative enjoys no expectation of privacy is unavailing; such expectations of privacy are measured from the hypothetical "innocent communicator's" point of view). Thus, although Congress cannot directly limit the President's intelligence gathering activities against Al Qaida, the Fourth Amendment does limit such activities when Americans are targeted.
At this point, we run into the most significant distortion that the "anti-eavesdropping" side has contributed to the debate. Generally speaking, in order for electronic eavesdropping to be reasonable under the Fourth Amendment, the government must first secure a search warrant that is supported by probable cause. Many liberals have incorrectly taken this to be the end of the issue. However, the Supreme Court's case law has long recognized that in certain special circumstances government searches need not meet the warrant or probable cause requirements in order to be reasonable. These "special needs" contexts- which include circumstances such as government searches of the homes of those on probation and drug testing of students by public school officials- need only meet a balancing test for reasonableness: the government's legitimate interests in carrying out the search must outweigh the privacy interests of those affected.
The main criteria for shifting to a "special needs" balancing approach is whether important government interests (other than normal law enforcement interests) would be significantly hampered by requiring warrants and probable cause. I believe that the Bush Administration's reasons for surveilling international communications fall within this category. The purpose of the NSA program is not simply to pursue typical law enforcement-like goals, but to expose agents of a foreign terrorist power operating within the United States. Granted, agents who were so exposed would almost certainly be detained under military authority, but these situations still strike me as being very different from normal, civilian, law enforcement situations. Additionally, applying the warrant and probable cause requirements to such programs could significantly hamper the usefulness of such programs by setting evidentiary and practical requirements that would be too onerous to meet in all but a few situations. The reasonableness balancing approach would allow courts to take into account the government's special and compelling reasons for eavesdropping while still making sure that the government's activities are related to and serve those special interests.
So where does all of that leave us? The intercepts conducted under the NSA's program must meet the requirements of the Fourth Amendment, but Congress lacks the power to impose any greater restrictions on the President's Article II war powers. Therefore, any restrictions set forth in FISA that go beyond the restrictions of the Fourth Amendment are unconstitutional.
The relevant provisions of FISA are summed up nicely in an article from The Boston Globe:
There are two elements of concern here: the requirement that the government get a court order for each target that they wish to surveil and the requirement that such orders may only be granted if probable cause exists. The question is whether these (or greater) restrictions are required by the Fourth Amendment. As already stated, I believe that under a special needs analysis, the Fourth Amendment does not require individualized probable cause in these circumstances. The court order requirement seems a closer issue: given that the government's monitoring is classified, an individual being monitored would never know of that fact and would thus never be able to challenge the monitoring. In my view, the Fourth Amendment (and/or the due process clause) requires some sort of court order process in such circumstances, but not necessarily that set down in FISA.
The precise restrictions required by the Fourth Amendment are beyond the scope of this little missive. The take-home point is that the determination must be one by the courts of what the constitution requires; the restrictions in the FISA statute are unconstitutional nullities.
Before beginning an analysis of the issues surrounding the NSA's eavesdropping, one must first recognize that much of the current discussion on the subject, on both sides, is very much off-base. On the pro-eavesdropping side (for a serious lack of a better term), many argue that the matter is settled by the question of whether the president's war powers- from Article II and/or from the Authorization for the Use of Military Force ("AUMF") Congress passed in the wake of 9/11- override the requirements imposed on the surveillance of foreign agents by Foriegn Intelligence Surveillance Act ("FISA"). On the other hand, many opponents of the eavesdropping program seem to believe that merely mentioning the words "Fourth Amendment" acts as a magical talisman that makes the NSA program unconstitutional. Both sides are right in some limited respects, but very wrong in others.
First, let's look at nature and scope of the president's power to order surveillance of the kind involved in the NSA program. Section 2 of Art. II is the "Commander and Chief" clause (my unscholarly term):
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Office, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.
Of course, this language makes no explicit mention of intelligence collection, but such activities are an integral part of warmaking, and the law has long recognized that reality. More immediately, both the D.C. Circuit Court of Appeals and the secret FISA appellate court (albeit in dicta in one of its few unclassified opinions) have recognized that this language from Article II grants President Bush the power to command U.S. agencies in their collection of intelligence against Al Qaida, in the much the same way that he may command the U.S. Army to act against Al Qaida.
It is fairly well settled that while Congress, under Article I, governs the raising and funding of military forces, Section 2 of Article II makes the president supreme in deciding how those forces are to be used in a time of military conflict. It is obvious that the United States is in a state of military conflict with Al Qaida, a conflict which Congress recognized and authorized by passing the AUMF. The importance of the AUMF in the current controversy is not in whether its language alone impliedly authorizes the NSA's program; that question is actually quite irrelevant. Rather, the importance of the AUMF is that it essentially declares Al Qaida a military enemy of the United States. This recognition empowers the president to use his Article II Commander and Chief powers, which Congress lacks the authority to limit directly, against Al Qaida. In other words, it is the text of the constitution, not the text of the AUMF, which grants the president the power to collect intelligence against Al Qaida, and Congress lacks the authority to directly regulate the use of that power.
Now, the administration and many conservative commentators have made this point ad nausium, and, indeed, if the NSA program merely involved communications that occurred only between suspected Al Qaida personnel operating in other countries, an inquiry into the program's legality would certainly stop here. However, the NSA program is controversial exactly because it is geared toward intercepting communications between American citizens/nationals and suspected Al Qaida members abroad. And this, much to the chagrin of many conservatives, brings the Fourth Amendment into play. Under modern law, the Fourth Amendment's prohibition against "unreasonable" searches and seizures extends to telephone and electronic communications, including international communications, involving Americans. (By the way, the argument that a person who knows he is talking to an Al Qaida operative enjoys no expectation of privacy is unavailing; such expectations of privacy are measured from the hypothetical "innocent communicator's" point of view). Thus, although Congress cannot directly limit the President's intelligence gathering activities against Al Qaida, the Fourth Amendment does limit such activities when Americans are targeted.
At this point, we run into the most significant distortion that the "anti-eavesdropping" side has contributed to the debate. Generally speaking, in order for electronic eavesdropping to be reasonable under the Fourth Amendment, the government must first secure a search warrant that is supported by probable cause. Many liberals have incorrectly taken this to be the end of the issue. However, the Supreme Court's case law has long recognized that in certain special circumstances government searches need not meet the warrant or probable cause requirements in order to be reasonable. These "special needs" contexts- which include circumstances such as government searches of the homes of those on probation and drug testing of students by public school officials- need only meet a balancing test for reasonableness: the government's legitimate interests in carrying out the search must outweigh the privacy interests of those affected.
The main criteria for shifting to a "special needs" balancing approach is whether important government interests (other than normal law enforcement interests) would be significantly hampered by requiring warrants and probable cause. I believe that the Bush Administration's reasons for surveilling international communications fall within this category. The purpose of the NSA program is not simply to pursue typical law enforcement-like goals, but to expose agents of a foreign terrorist power operating within the United States. Granted, agents who were so exposed would almost certainly be detained under military authority, but these situations still strike me as being very different from normal, civilian, law enforcement situations. Additionally, applying the warrant and probable cause requirements to such programs could significantly hamper the usefulness of such programs by setting evidentiary and practical requirements that would be too onerous to meet in all but a few situations. The reasonableness balancing approach would allow courts to take into account the government's special and compelling reasons for eavesdropping while still making sure that the government's activities are related to and serve those special interests.
So where does all of that leave us? The intercepts conducted under the NSA's program must meet the requirements of the Fourth Amendment, but Congress lacks the power to impose any greater restrictions on the President's Article II war powers. Therefore, any restrictions set forth in FISA that go beyond the restrictions of the Fourth Amendment are unconstitutional.
The relevant provisions of FISA are summed up nicely in an article from The Boston Globe:
The law in question, the Foreign Intelligence Surveillance Act, or FISA, which has governed domestic surveillance since 1978, requires the government to apply to a special court for a warrant in order to conduct surveillance for intelligence purposes on US soil. In a warrant application, investigators must show they have probable cause to believe that their target is a foreign power or its agent. The NSA program approved by President Bush did not go through the FISA court-instead, the agency has been tapping the phones and reading the e-mail of US residents without warrants.
There are two elements of concern here: the requirement that the government get a court order for each target that they wish to surveil and the requirement that such orders may only be granted if probable cause exists. The question is whether these (or greater) restrictions are required by the Fourth Amendment. As already stated, I believe that under a special needs analysis, the Fourth Amendment does not require individualized probable cause in these circumstances. The court order requirement seems a closer issue: given that the government's monitoring is classified, an individual being monitored would never know of that fact and would thus never be able to challenge the monitoring. In my view, the Fourth Amendment (and/or the due process clause) requires some sort of court order process in such circumstances, but not necessarily that set down in FISA.
The precise restrictions required by the Fourth Amendment are beyond the scope of this little missive. The take-home point is that the determination must be one by the courts of what the constitution requires; the restrictions in the FISA statute are unconstitutional nullities.
Those Cartoons and Free Speech
The editor from Dutch newspaper Jyllands-Posten who made the decision to publish those twelve cartoons of Muhammad has an absolute must read op-ed in the Washington Post today defending the importance of free speech. Here's one particularly good paragraph:
One of the better current defenses of free speech that I've read in the past few years. Read the whole thing.
Has Jyllands-Posten insulted and disrespected Islam? It certainly didn't intend to. But what does respect mean? When I visit a mosque, I show my respect by taking off my shoes. I follow the customs, just as I do in a church, synagogue or other holy place. But if a believer demands that I, as a nonbeliever, observe his taboos in the public domain, he is not asking for my respect, but for my submission. And that is incompatible with a secular democracy.
One of the better current defenses of free speech that I've read in the past few years. Read the whole thing.
Saturday, February 18, 2006
Upcoming Updates
Sorry about the fewer-than-usual number of updates over the last couple of days; I've been doing some work on theoretical issues that I hope will bear fruit on down the line. Anyway, I've got lots of good stuff that I'm going to post in the next 24 hours, including a more comprehensive legal analysis on the wiretap controversy and a slew of good links to news articles and commentary. Stay tuned.
Friday, February 17, 2006
Robert P. George & "The Living Constitution"
The highly respected philosopher/theologian/legal theorist/Princeton Prof. (and Morgantown native, I'm told) Robert P. George makes a nice concise attack on "living constitution" theory in a broader essay about higher education. There's nothing new is his statement, but it's still a good summary of the grounds for criticizing that theory of constitutional interpretation:
I quoted the part relevant to constitutional theory, but the whole essay is worth a read.
(Via Bench Memos)
Lacking basic knowledge of the American Founders’ political philosophy and of the principles that they enshrined in the Constitution, students often fall prey to the notion that ours is a “Living Constitution,” whose actual words matter little. On the Living Constitution theory, judges—especially Supreme Court justices—serve as members of a kind of standing constitutional convention whose role is to invalidate legislation that progressive circles regard as antiquated or retrograde, all in the name of adapting the Constitution to keep up with the times.
It doesn’t take much to expose the absurdity of this theory. The purpose of enshrining principles in a constitution is to ensure that the nation’s fundamental values remain honored even if they fall out of fashion. As for adapting the nation’s laws to keep up with the times, legislators can—and should—take care of that task. The proper role of courts when they exercise the power of judicial review is essentially a conserving (you could even say “conservative”) one. It is not to change anything but rather to place limits on what one can change.
Does this mean that our Constitution is “dead”? No: the Constitution’s principles are “living” in the sense that they can apply validly even to matters that the Founders themselves could not have anticipated. The original understanding of Fourth Amendment principles governing searches and seizures, for example, can reliably extend to cover today’s controversies about computer files, cyber-storage, and electronic surveillance. So to reject, as we should, the Living Constitution and its anticonstitutional doctrine of virtually unlimited judicial power is by no means to treat our Constitution as a dead letter. Rather, it is to treat the Constitution as law—supreme law—binding on, and limiting the power of, every branch of government and agency of the state, including the courts.
I quoted the part relevant to constitutional theory, but the whole essay is worth a read.
(Via Bench Memos)
Thursday, February 16, 2006
Welcome to the Jungle, Justice Alito
Alito's formal investiture ceremony was held at the Supreme Court today; SCOTUSblog has some good coverage.
(Photo via Yahoo/Reuters)
Where Every Word Counts
Interesting article in the New York Times today (yes, the New York Times) about the profound transitions that justices coming on to the Court encounter. This quote from Justice Breyer about his first years on the Court particularly struck me:
Now, Breyer's a little self-indulgent in my view (perhaps more than a little), but there's no doubt that becoming Supreme Court justice must carry with it a feeling of responsibility that few of us can imagine and even fewer would want.
Update: Also, check out the brief note at the end of the Times story about the office chambers for retired SCOTUS justices.
Update #2: There's another podcast up from Breyer at the U of Chicago. This time, he's speaking on the topic of "So I'm a Supreme Court Justice - What Do I Do All Day?." Haven't listened to it yet, but it apparently includes some interesting accounts of some of the Court's quirkier traditions for new justices.
(Via SCOTUSblog)
"I was afraid I might inadvertently write something harmful," Justice Breyer said. "People read every word. Everything you do is important. There is a seriousness to every word, and you really can't go back. Precedent doesn't absolutely limit you. In almost every case, you're in a wide-open area. The breadth of that opening, getting up to speed on each case, constitutional law as a steady diet, the importance to the profession. ..." His voice trailed off, and he shook his head. "My goodness!" he exclaimed.
Now, Breyer's a little self-indulgent in my view (perhaps more than a little), but there's no doubt that becoming Supreme Court justice must carry with it a feeling of responsibility that few of us can imagine and even fewer would want.
Update: Also, check out the brief note at the end of the Times story about the office chambers for retired SCOTUS justices.
Update #2: There's another podcast up from Breyer at the U of Chicago. This time, he's speaking on the topic of "So I'm a Supreme Court Justice - What Do I Do All Day?." Haven't listened to it yet, but it apparently includes some interesting accounts of some of the Court's quirkier traditions for new justices.
(Via SCOTUSblog)
Wednesday, February 15, 2006
Hamdan v. Rumsfeld Down the Tubes
It looks like SCOTUS will probably grant a government motion to dismiss (not a disposition on the merits, but essentially a reversal of the grant of certiorari) in Hamdan v. Rumsfeld, the challenge of a Gitmo prisoner to being detained indefinitely without charges. The Court had granted cert. back when Hamdan was still be held in military custody, but the government transferred him to the civilian federal court system in order to avoid SCOTUS review of whether non-U.S. citizens or residents (ie. enemy combatants from outside the U.S.) are entitled to any protections under the U.S. Constitution. Hamdan's lawyers are still trying to keep the appeal alive, arguing that various issues surrounding the right to habeas corpus are still in play. However, given the Court's historic reluctance to interpose itself in matters of how the federal government deals with captives captured in military conflict, it's highly doubtful that the Court will continue to hear the case.
More details on the progress of the case here.
More details on the progress of the case here.
Is the ABA Ordering Law Schools to Break the Law?
Perhaps. A piece in today's online edition of the Wall Street Journal, available here, details a new American Bar Association missive called Standard 211. Enacted by the ABA's Council of the Section on Legal Education and Admissions to the Bar, Standard 211 allows, among other things, law schools to take race and ethnicity into account in the admissions process in order to promote "diversity and equal opportunity." Whatever the merits of that, it's hardly stunning that the ABA would take such a position. However, an "interpretation" of Standard 211 written by the ABA contains this gem:
There might be some uber-parsed way to interpret that language as something other than a directive to law schools to disregard the law, but I'm not seeing it at the moment.
Update: I can't find the actual full text of the new standards on the web yet. In retrospect, I probably should have reserved comment until that was possible.
[T]he requirements of a constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity or national origin in admissions or employment decisions is not a justification for a school's non-compliance with Standard 211.
There might be some uber-parsed way to interpret that language as something other than a directive to law schools to disregard the law, but I'm not seeing it at the moment.
Update: I can't find the actual full text of the new standards on the web yet. In retrospect, I probably should have reserved comment until that was possible.
Tuesday, February 14, 2006
With That Being Said...
I'm glad Scalia broke the legal news monotony a bit. SCOTUS won't issue any new opinions until next Monday, the Patriot Act impasse is resolved, and the wiretapping "scandal" has temporarily settled down. All in all, a lazy jurisprudential Tuesday.
Scalia Goes a Bit Too Far
In a talk at a Federalist Society conference today, Justice Scalia again spoke about his philosophy of constitutional interpretation and criticized those of some other justices on the Court. To quote the AP story:
Now, I'm as big of fan of Scalia as anyone you're likely to find, at least at WVU Law. He's my jurisprudential hero. But calling one's opponents idiots isn't a particularly effective way to go about winning hearts and minds (see Dean, Howard). Moreover, members of the Federalist Society, who are not infrequently called racist/sexist/fascist/homophobic/etc., should be particularly reticent to lower debates to the level of namecalling. We're better than that, and should act like it.
Scalia criticized those who believe in what he called the "living Constitution."
"That's the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break."
"But you would have to be an idiot to believe that," Scalia said. "The Constitution is not a living organism, it is a legal document. It says something and doesn't say other things."
Now, I'm as big of fan of Scalia as anyone you're likely to find, at least at WVU Law. He's my jurisprudential hero. But calling one's opponents idiots isn't a particularly effective way to go about winning hearts and minds (see Dean, Howard). Moreover, members of the Federalist Society, who are not infrequently called racist/sexist/fascist/homophobic/etc., should be particularly reticent to lower debates to the level of namecalling. We're better than that, and should act like it.
Monday, February 13, 2006
Details on the Patriot Act Deal
Well-connected former federal prosecutor Andrew McCarthy provided some inside details in The Corner regarding the deal on Friday to reauthorize the Patriot Act for an additional four years. Judging by the reactions of McCarthy (a very, very pro-Patriot Act advocate) and some of the news stories out there, it looks like many of the senators who were arguing for significant reforms in the Act's provisions essentially caved. Of course, the Patriot Act's renewal was politically inevitable, in one form or another, but a cynic might say that many of those senators held up its reauthorization just to score cheap political points.
Glad I'm not a cynic.
Glad I'm not a cynic.
Saturday, February 11, 2006
Miers Speaks
An interview with White House counsel and former SCOTUS nominee Harriet Miers appeared in the Dallas Morning News on Friday. Miers stated that she has no regrets about accepting the president's nomination and defended her credentials to serve on the Court.
Reading the article, I was reminded of how unfortunate the whole course of that nomination was. There was never any doubt about the fact that Miers was a good person, and many of the personal attacks put forward in opposition to her nomination were scurrilous at best. Indeed, in a different era, with a court that had a different philosophical view of its power, Miers might have been a perfectly acceptable justice. Alas for everyone, we do not live in that era. Justice O'Conner's seat needed to be filled by someone with the rare skills needed to compete argumentatively with Justices Breyer, Ginsburg, and Stevens, and to help move the Court toward positions that are more consistent with its inherent role in our republic. Alito has those rare skills; Miers didn't. That was not a moral shortcoming on her part, but neither was it a fact that could have been ignored.
(Link via How Appealing)
Reading the article, I was reminded of how unfortunate the whole course of that nomination was. There was never any doubt about the fact that Miers was a good person, and many of the personal attacks put forward in opposition to her nomination were scurrilous at best. Indeed, in a different era, with a court that had a different philosophical view of its power, Miers might have been a perfectly acceptable justice. Alas for everyone, we do not live in that era. Justice O'Conner's seat needed to be filled by someone with the rare skills needed to compete argumentatively with Justices Breyer, Ginsburg, and Stevens, and to help move the Court toward positions that are more consistent with its inherent role in our republic. Alito has those rare skills; Miers didn't. That was not a moral shortcoming on her part, but neither was it a fact that could have been ignored.
(Link via How Appealing)
An Early Review of the Roberts Court
There's an AP story out there asking why the Roberts court has resolved several potentially divisive cases on narrow grounds and by unanimous vote (such as the Ayotte abortion case). The article poses the question of whether this phenomenon is due to a temporary period of transition caused by the recent turnover of justices or represents a more permanent, more consensus-based mode of operation on the Court.
The short and correct answer is that it's too early to tell: the Alito nomination process has just finished and Roberts is still getting his feet wet on the court. Still, it will be interesting to see how Roberts' self-announced values of judicial modesty manifest themselves when the Court faces hard questions it cannot procedurally avoid.
The short and correct answer is that it's too early to tell: the Alito nomination process has just finished and Roberts is still getting his feet wet on the court. Still, it will be interesting to see how Roberts' self-announced values of judicial modesty manifest themselves when the Court faces hard questions it cannot procedurally avoid.
Friday, February 10, 2006
Elected Judges
For anyone studying the issue of judicial selection in West Virginia (or anywhere else with elected judges, for that matter) an interesting new law review article can be found here. The empirical evidence is from Wisconsin, but the analysis and conclusions seem highly relevant to West Virginia's system as well.
(Hat tip to Legal Theory Blog)
(Hat tip to Legal Theory Blog)
What is a "Federalist"? cont.
I'm not as big of fan of Robert Bork as some others, but this quote from Tradition and Morality in Constitutional Law illuminates the core beliefs of the Federalist Society nicely:
In a constitutional democracy the moral content of the law must be given by the morality of the framer or the legislator, never the judge. The sole task of the latter- and it is quite large enough for anyone's skill, wisdom, or virtue- is to translate the framer's or the legislator's morality into a rule to govern unforeseen circumstances. That abstinence from giving his own desires free play, that continuing and self-conscious renunciation of power, that is the morality
of the jurist.
What is a "Federalist"?
When I solicit students to join the WVU chapter of the Federalist Society, one question comes up far more frequently than any other: some version of "What is a federalist"? Students have heard the Federalist Society mentioned in connection with judicial nominations and other news events, but they have not heard exactly its what members believe. There is good reason for this. The question may be obvious, but the answer is a bit less straightforward.
A "federalist," or more precisely a member of the Federalist Society, believes that the job of judges is to determine what the law is from objective sources (constitutions, statutes, cases, history, etc.) while minimizing the impact of his or her own subjective views and policy preferences. The core justification for this belief is that while a judge's independence and expertise may give his interpretation of, say, a statute more legitimacy and weight than an ordinary citizen's, that same judge's subjective political, philosophical, or moral views about whether a statute is wise policy are carry no more authority than Joe Blow's on the street. To paraphrase Learned Hand, judges are entitled to interpret the law; they are not entitled to rule as philosopher kings.
There are some instances in which it is easy to see whether a judge is relying on objective sources or internal views. For instance, if a federal judge were to rule that the minimum age for assuming the presidency is 30 years of age, it would be obvious that the judge was relying upon his own views of what that minimum should be, rather than the proper objective source (ie. the U.S. Constitution, which specifies 35 years). However, in most of the cases which are truly controversial in modern American law, the distinction between interpreting objective sources and relying upon personal views is far harder to draw. Indeed, Federalist Society members frequently disagree among themselves whether a court in any particular decision stepped over the line, and the Federalist Society as an organization does not take positions on how any particular court cases should be resolved.
That diversity of opinion exists, and is in fact essential to the Society's continuing vitality. However, there is also a fairly uniform belief among members- a sort of glue that holds the Society together- that judges in the modern era have too often lost sight of the need to distinguish between objective law and personal views, and have let the latter influence their rulings to an unacceptable degree. It was in opposition to this trend that the Society was formed, and countering that trend is still its focus. As our motto states, "restoring the legal culture" is the Federalist Society's mission.
How does the WVU chapter implement that mission? By placing our faith in the marketplace of ideas. The members of our organization believe that through open debate, and only through open debate, can the legal culture be reformed. This blog and the events we hold on campus are attempts to serve that goal. If you share these values, we ask you to consider joining with us in our task.
Update: Should have mentioned that, despite the similarities in nomenclature, there is no necessary connection between being a member of the Federalist Society and holding any particular view on federalism in the state-federal power division sense of that word.
A "federalist," or more precisely a member of the Federalist Society, believes that the job of judges is to determine what the law is from objective sources (constitutions, statutes, cases, history, etc.) while minimizing the impact of his or her own subjective views and policy preferences. The core justification for this belief is that while a judge's independence and expertise may give his interpretation of, say, a statute more legitimacy and weight than an ordinary citizen's, that same judge's subjective political, philosophical, or moral views about whether a statute is wise policy are carry no more authority than Joe Blow's on the street. To paraphrase Learned Hand, judges are entitled to interpret the law; they are not entitled to rule as philosopher kings.
There are some instances in which it is easy to see whether a judge is relying on objective sources or internal views. For instance, if a federal judge were to rule that the minimum age for assuming the presidency is 30 years of age, it would be obvious that the judge was relying upon his own views of what that minimum should be, rather than the proper objective source (ie. the U.S. Constitution, which specifies 35 years). However, in most of the cases which are truly controversial in modern American law, the distinction between interpreting objective sources and relying upon personal views is far harder to draw. Indeed, Federalist Society members frequently disagree among themselves whether a court in any particular decision stepped over the line, and the Federalist Society as an organization does not take positions on how any particular court cases should be resolved.
That diversity of opinion exists, and is in fact essential to the Society's continuing vitality. However, there is also a fairly uniform belief among members- a sort of glue that holds the Society together- that judges in the modern era have too often lost sight of the need to distinguish between objective law and personal views, and have let the latter influence their rulings to an unacceptable degree. It was in opposition to this trend that the Society was formed, and countering that trend is still its focus. As our motto states, "restoring the legal culture" is the Federalist Society's mission.
How does the WVU chapter implement that mission? By placing our faith in the marketplace of ideas. The members of our organization believe that through open debate, and only through open debate, can the legal culture be reformed. This blog and the events we hold on campus are attempts to serve that goal. If you share these values, we ask you to consider joining with us in our task.
Update: Should have mentioned that, despite the similarities in nomenclature, there is no necessary connection between being a member of the Federalist Society and holding any particular view on federalism in the state-federal power division sense of that word.
Thursday, February 09, 2006
Even Visits by the Justices Are Unequal
Chicago gets Justice Breyer speaking about philosophies of constitutional interpretation; WVU got a pedestrian lecture by Justice Ginsburg on her controversial thesis that decreased gender discrimination in the legal profession is good.
There. I said it.
There. I said it.
The Ninth Circuit
For those who follow such things, some brief but interesting background info/analysis on the current ideological balance in the Ninth Circuit and the potential effect of more GWB appointees.
Wednesday, February 08, 2006
Disappointing "Liberty"
Picking up on the Justice Breyer theme from earlier today, there have been a number of reviews (see here and here, for examples) of his recent book, Active Liberty, floating around the net. Actively advertised before its release as a seminal counterpoint to Justice Scalia's A Matter of Interpretation, (both works are actually collections of lectures given by the justices and edited into book format) Breyer's new missive has so far proven more of a dud than an explosive new statement of jurisprudence.
Upon reading the book, it's fairly clear why Active Liberty has failed to meet expectations. Breyer's thesis is fairly clear: the Court should attempt to enhance popular participation in governing, which sometimes takes the form of deference to legislative actions but sometimes requires a "consequentialist" approach to interpreting the constitution (see the previous Breyer post). However, the great shortcoming of Breyer's work is that he fails to reconcile the Court's cases on due process and "fundamental rights" with his erstwhile goal of maximizing majority participation and rule. In fact, he barely discusses the seeming disparity at all. Further, though Breyer points out several objections to his arguments in a chapter near the end of his short tome, including some related to his consequentialist theory, he then strangely fails to address those doubts, as if the answers were readily apparent from the rest of the book. They aren't. Breyer may be able to produce a work that stands as an effective counterpoint to the views of the Scalia camp, but Active Liberty isn't it.
(Hat tips to Bench Memos and SCOTUSblog for the links)
Upon reading the book, it's fairly clear why Active Liberty has failed to meet expectations. Breyer's thesis is fairly clear: the Court should attempt to enhance popular participation in governing, which sometimes takes the form of deference to legislative actions but sometimes requires a "consequentialist" approach to interpreting the constitution (see the previous Breyer post). However, the great shortcoming of Breyer's work is that he fails to reconcile the Court's cases on due process and "fundamental rights" with his erstwhile goal of maximizing majority participation and rule. In fact, he barely discusses the seeming disparity at all. Further, though Breyer points out several objections to his arguments in a chapter near the end of his short tome, including some related to his consequentialist theory, he then strangely fails to address those doubts, as if the answers were readily apparent from the rest of the book. They aren't. Breyer may be able to produce a work that stands as an effective counterpoint to the views of the Scalia camp, but Active Liberty isn't it.
(Hat tips to Bench Memos and SCOTUSblog for the links)
Postings/Under Construction pt. 2
This work-in-progress blog remains so. Fixed the broken e-mail link in the introductory post and added a permanent e-mail link at the right side of the page. By the way, if anyone has any favorite legal links that they are particularly fond of or find stimulating/insightful, send them along to me.
Additionally, thanks to those of you who have already given feedback or comments, in person or electronically, and keep it coming.
Additionally, thanks to those of you who have already given feedback or comments, in person or electronically, and keep it coming.
Breyer Remarks
In some remarks today at the University of Chicago, Justice Breyer said that, in terms of conventional Democratic/Republican partisanship, "I haven't seen that kind of politics in the Supreme Court. Zero. It doesn't exist." Some may question the honesty or plausibility of that statement, but other current justices have made similar assertions, and scholars studying the former Rehnquist court have commented on the collegiality among the justices. I take these things as further evidence that the current justices, across the ideological spectrum of the Court, actually do believe that judging is a fundamentally different activity from traditionally political and partisan processes, such as legislating.
However, there is also the question of whether that belief is actually reflective of reality. In another portion of his speech, Breyer described six basic "criteria" in accessing the constitutionality of a law: the language of the law, the history of the text, tradition behind the text, precedents, the purpose of the law and the consequences of letting the law stand or striking it down. Regarding his own views and others on the court: "I tend to emphasize purpose and consequences. Others emphasize language, a more literal reading of the text, history and tradition - believing that those help you reach a more objective answer." It is good to see Breyer again make explicit that "consequences of letting the law stand " are often more important for him than factors such as language or history. However, Breyer apparently did not address the glaring issues that are raised by this approach: whether a judge can legitimately rely upon a consequentialist approach, which essentially relies upon the conclusion that the judge's evaluation of policy consequences should carry more weight that a legislature's, and the potential decline in predictability which would seem to stem from such an approach. In other words, whether the consequentialist approach is inherently political.
More on this, and Breyer's book Active Liberty, after I read for Fed Courts.
However, there is also the question of whether that belief is actually reflective of reality. In another portion of his speech, Breyer described six basic "criteria" in accessing the constitutionality of a law: the language of the law, the history of the text, tradition behind the text, precedents, the purpose of the law and the consequences of letting the law stand or striking it down. Regarding his own views and others on the court: "I tend to emphasize purpose and consequences. Others emphasize language, a more literal reading of the text, history and tradition - believing that those help you reach a more objective answer." It is good to see Breyer again make explicit that "consequences of letting the law stand " are often more important for him than factors such as language or history. However, Breyer apparently did not address the glaring issues that are raised by this approach: whether a judge can legitimately rely upon a consequentialist approach, which essentially relies upon the conclusion that the judge's evaluation of policy consequences should carry more weight that a legislature's, and the potential decline in predictability which would seem to stem from such an approach. In other words, whether the consequentialist approach is inherently political.
More on this, and Breyer's book Active Liberty, after I read for Fed Courts.
For Fans of Scalia...
he's discussing some weighty jurisprudential issues in a book review over at FirstThings. Reviewing Law's Quandry by Stephen Smith, Scalia seems intrigued by many of the conflicts in the modern conception of law that Smith sees, including some logical inconsistencies that seem to stem from overreliance on realist principles. However, he also rebuts many of Smith's claimed inconsistencies in how we view law, arguing, essentially, that they are rendered moot by Scalia's jurisprudential views and "original meaning" methods of constitutional interpretation. Scalia is in top form, and Smith's book comes off as worth a read as well.
Hat tip to Bench Memos.
Hat tip to Bench Memos.
Tuesday, February 07, 2006
For Fans of Civil Pro...
and followers of boneheaded lawyering: The Supreme Court has unequivocally ruled that a defendant must file a post-verdict motion for judgment as a matter of law and/or new trial to preserve the issue of the sufficiency of evidence for appeal, even if counsel moved for directed verdict during the trial. Apparently, the 10th Circuit precedents had supported the more lenient proposition. Stevens and Kennedy dissented.
Please Allow Me to Introduce Myself / Ourselves
So, now that this forum has a name, it seems time to get some introductory matters out of the way. This blog is produced by the members of the Federalist Society chapter at the West Virginia University College of Law in Morgantown, WV. Now, I grant right off the bat that West Virginia University is not exactly known as a hotbed of Federalist Society-type legal thought, if it is known as a hotbed of legal thought (or any kind of thought) at all, but we manage to stir up a few hornets nests here and there. In any event, this blog will host arguments, thoughtful missives, and irrational rantings from law students in our chapter.
As more people begin to post, they can introduce themselves to the extent they desire. As for myself? Though neither a man of wealth nor taste, I am a 2L at WVU Law and president of our Fed Soc chapter, and blogmaster of this site. Like so many who comment on legal issues, my interest in the field of law exceeds the grasp of my knowledge, so I beg your patience in advance. Comments and suggestions are encouraged and greatly welcome, and can be submitted by clicking on the "comments" links on individual posts (not surprisingly) or by sending them to wvufederalists@yahoo.com .
Thanks in advance for your readership,
Brian Areford
As more people begin to post, they can introduce themselves to the extent they desire. As for myself? Though neither a man of wealth nor taste, I am a 2L at WVU Law and president of our Fed Soc chapter, and blogmaster of this site. Like so many who comment on legal issues, my interest in the field of law exceeds the grasp of my knowledge, so I beg your patience in advance. Comments and suggestions are encouraged and greatly welcome, and can be submitted by clicking on the "comments" links on individual posts (not surprisingly) or by sending them to wvufederalists@yahoo.com .
Thanks in advance for your readership,
Brian Areford
Name Change
After a not-insignificant amount of consideration, I decided to christen this blog with its permanent name. Semper Liberi will examine questions of constitutional law, jurisprudence, law and social policy, and other matters of interest to law dorks everywhere. Additionally, as all the posting members of this blog will likely be from West Virginia University, this forum will likely be host to discussions about more, uh, parochial issues (though cheap shots at Pitt Law School will be discouraged, unless things get really dull). Let the blogging begin in earnest.
Update: Neglected to expressly mention the inspiration for this blog's title. It should be obvious for West Virginia natives, but for those who were not born and bred in this jurisdiction, see here.
Update: Neglected to expressly mention the inspiration for this blog's title. It should be obvious for West Virginia natives, but for those who were not born and bred in this jurisdiction, see here.
Monday, February 06, 2006
The Wiretap Controversy
Now that hearings have started on the Bush Administration's use of wiretaps to intercept communications between Americans and suspected terrorists overseas, it seems the issue will remain in the political spotlight for a while. Politically, this is probably a good thing for the GOP: the most likely effect of the Dems opposition is to further reinforce the public perception that they are weak on national security issues. Legally, the Administration's main constitutional contention- that it has the inherent constitutional power to warrantlessly intercept messages between Americans and agents of a foreign enemy power -seems reasonably sound to me, at least on its face (setting aside the government's much weaker position that the authorization for the use of force against Al-Qaida constitutes an implied grant of power for such things).
With that being said, those who jealously value the separation of powers should be concerned about the Administration's claim that it can ignore the provisions of FISA in secret, based on the president's inherent power. It is one thing for a president to publicly announce that a congressional statute (such as FISA) infringes on his warmaking power, and therefore he will not enforce it at the expense of endangering national security. It is quite another to make that conclusion and ignore the statute in secret. One can debate the merits of the Bush Administration's arguments as to why the FISA restrictions it bypassed were unconstitutional, but it seems important for the political accountability process and the "rule of law" that the public knows about such exercises of presidential nullification.
Now, of course, in this case public disclosure of the NSA's bypassing of FISA would probably have compromised the intelligence value of a potentially important anti-terror tool, hardly an insignificant consideration. My only point is that legal conservatives should not unquestioningly support an argument that a president may secretly ignore laws if he (and remember, GWB will not always be president) makes the determination that it is in the interests of national security to do so.
With that being said, those who jealously value the separation of powers should be concerned about the Administration's claim that it can ignore the provisions of FISA in secret, based on the president's inherent power. It is one thing for a president to publicly announce that a congressional statute (such as FISA) infringes on his warmaking power, and therefore he will not enforce it at the expense of endangering national security. It is quite another to make that conclusion and ignore the statute in secret. One can debate the merits of the Bush Administration's arguments as to why the FISA restrictions it bypassed were unconstitutional, but it seems important for the political accountability process and the "rule of law" that the public knows about such exercises of presidential nullification.
Now, of course, in this case public disclosure of the NSA's bypassing of FISA would probably have compromised the intelligence value of a potentially important anti-terror tool, hardly an insignificant consideration. My only point is that legal conservatives should not unquestioningly support an argument that a president may secretly ignore laws if he (and remember, GWB will not always be president) makes the determination that it is in the interests of national security to do so.
Postings/Under Construction
Been having some trouble getting postings and other content up, partly due to my newness to the blogger service and partly due to some problems with the service itself. Anyway, should have some more content, links, and a spiffier interface up sometime this week.
Saturday, February 04, 2006
Interpreting the Constitution: "Underlying-Principles" Theory
Lawrence Solum has a post up on his indispensable Legal Theory Blog about a debate over the use of the "underlying principles" behind various constitutional provisions in constitutional interpretation. Solum's analysis, which is actually a response to a scholarly article critiquing Randy Barnett's criticisms of Scalia's originalism (it's clearer when you read the piece), provides much worth reading for beginners in the area of legal theory. I'm not sure I agree with Solum's conclusion that "there is a difference between the use of underlying principles to resolve ambiguity or vagueness and the use ofunderlying principles as a substitute for the constitutional text," but the post and the articles it cites make for very interesting reading.
Friday, February 03, 2006
The Inaugural Post
This is the first post of the blog for the West Virginia University chapter of the Federalist Society.
Audi alteram partem.
(What kind of legal blog could this be without a pretentious latin motto?)
Audi alteram partem.
(What kind of legal blog could this be without a pretentious latin motto?)
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