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.
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