Student Free Speech Decision: Yields a Confusing Test

Yesterday, the Court handed down its opinion in one of two blockbuster cases remaining to be decided: Morse v. Frederick. The case decides whether an Alaska school can limit student free speech regarding illegal drugs. The student, Joseph Frederick ,was suspended after displaying a sign reading "Bong Hits 4 Jesus" and he subsequently sued the school for violating his First Amendment rights.

The decision seems to chip away at a clear and applicable test for restricting First Amendment protections of freedom of speech. Precedent has usually cited safety as a primary concern for restricting freedom of speech and the Court's decision in Morse expands the definition of safety slightly too much.

CJ Roberts writes the opinion for a highly fractured majority: Scalia joins with Roberts, Alito and Kennedy write concurring opinions, and Breyer joins in the outcome of the case, but for a different reason than the other four justices. A common thread among all five justices, however, is that the school should win. Save Justice Breyer, the Court found that the student banner which was displayed at a parade reading "Bong Hits 4 Jesus" was speech that "materially and substantially disrupted the work and discipline of the school." How? By encouraging illegal drug use which has become an enormous problem among adolescents. Therefore restricting this speech will lower peer pressure to use illegal drugs such as the one in this case, marijuana.

The connection between the banner and increased drug usage is tenuous at best. The Court provides no evidence showing that the school experienced or would experienced increased numbers of students using drugs after being exposed to the sign. Moreover, the strongest stimulus of peer pressure, which would cause students to use illegal drugs, is not removed by the sign and subsequent speech being banned by the school. The ban shows disapproval, but would adolescent teens ever really listen to an adult's simple disapproval?

Stevens in his dissent gets it right. He writes:

The Court’s test invites stark viewpoint discrimination. In this case, for example, the principal has unabashedly acknowledged that she disciplined Frederick because she disagreed with the pro-drug viewpoint she ascribed to the message on the banner, see App. 25—a viewpoint, incidentally, that Frederick has disavowed, see id., at 28. Unlike our recent decision in Tennessee Secondary School Athletic Assn. v. Brentwood Academy, 551 U. S. (2007) (slip op., at 3), see also ante, at 3 (ALITO, J., concurring), the Court’s holding in this case strikes at "the heart of the First Amendment" because it upholds a punishment meted out on the basis of a listener’s disagreement with her understanding (or, more likely, misunderstanding) of the speaker’s viewpoint. "If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson, 491 U. S. 397, 414 (1989).

In addition, he cites Tinker again, placing emphasis upon the fact that "Tinker requires a specific and significant fear of disruption, not just some remote apprehension of disturbance." CJ Roberts draws too many lines and has to make too many assumptions in showing the connection between Frederick's sign and an increase in student drug use. There is no "significant fear of disruption." At least none in the opinion was shown or advocated by the school itself.

One other danger of "viewpoint discrimination," as Justice Stevens calls it, would be that moral judgments either on the morality of gay marriage, stem cell research, or abortion would become at least conceivably regulated under the school's policy of anything that "materially or substantially would disrupt the work or discipline of the school." Resolving teenage pregnancy through abortion may very well be an increasing problem for America, but does the school have a right to limit speech which may advocate for a pro-choice position? The test the Court lays out in Morse would appear to affirm a school's decision to limit that kind of speech.

Justice Breyer also points out an interesting situation:

If, for example, Frederick’s banner had read"LEGALIZE BONG HiTS," he might be thought to receive protection from the majority’s rule, which goes to speech "encouraging illegal drug use." Ante, at 2 (emphasis added). But speech advocating change in drug laws might also be perceived of as promoting the disregard of existing drug laws.

Legal principles must treat like instances alike. Those principles do not permit treating "drug use" separately without a satisfying explanation of why drug use is sui generis. To say that illegal drug use is harmful to students, while surely true, does not itself constitute a satisfying explanation because there are many such harms. During a real war, one less metaphorical than the war on drugs, the Court declined an opportunity to draw narrow subject-matter-based lines. Cf. West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943) (holding students cannot be compelled to recite the Pledge of Allegiance during World War II).

Indeed, the Court does not consider the chilling effects that their decision creates on possibly educative speech which will broaden student's horizons and force them to make educated and informed choices (whether on the use of illegal drugs or support for an unpopular war)--something which would substantially aid the work and discipline of the school, rather than disrupt.

The Court authors a problematic decision in Morse. It will likely see this case revisited once more so that they can fashion a more coherent approach to free speech in schools.

The LSAT, Logic Games, & Brendlin

One component on the standardized test used for admission to law schools around the country, is called logic games. Logic games comprise a range of different situations in which a student taking the test must know how to arrange and coordinate multiple sets of elements at a time.

For example, say that a college counselor needs to meet with five students: Betty, Carol, Dan, Ellen, and Fin over the five day week. The test taker must coordinate the schedule for the college counselor. Simple right? However, there may be several restrictions to the counselor's meeting schedule such as the fact that she cannot see any girls on Monday or Wednesday, Carol must see the counselor before Dan, and Carol must see the counselor anytime in between Betty and Ellen. The Law School Admissions Test (LSAT) thus requires students to be able to separate important issues and determine what really matters in resolving a problem.

Similarly in the recent case involving passenger's rights to bring a constitutional challenge against a traffic stop search (Brendlin v. California), a similar element of being able to separate issues and deal with multiple elements at a time is at hand. The case is interesting in that the methamphetamines seized on Brendlin's person implicate him in illegal drug use. Why should a person who most probably committed a crime be allowed to bring a challenge to his detention and suppress this evidence? It is most likely for this reason why the California Supreme Court ruled against Brendlin since letting a person who violated the law go free is not "equal justice under law." Yet, the question which the justices should have addressed separates this issue of guilt and innocence, requiring them to ascertain whether or not Brendlin or a person similarly situated has the right to bring a constitutional challenge to the seizure. Whether or not the person is guilty or innocent based on this evidence seized during the traffic stop is an entirely separate issue.

The question posed to the justices was: "Whether a passenger in a vehicle subject to a traffic stop is thereby “detained” for purposes of the Fourth Amendment, thus allowing the passenger to contest the legality of the traffic stop." How else could a person sitting in the vehicle not be detained? It would be ludicrous to say otherwise. Come on, justices use those good skills that the LSAT reinforced.

It appears that perhaps the California Supreme Court justices need a little logic games review for the next term.

Increasing Tension in Lower Court Nominations

It is well known among scholars of the law that most of the power to decide cases lies with lower court judges rather than courts of appeal or courts of review. The rationale is that higher courts, while they have the power of reviewing lower court decisions, do not have the time to review all of the lower court decisions and therefore they usually stand as the law.

However, it appears that there is always a frenzy over appointing judges at higher levels in the court system. Alito and Roberts are examples on the USSC. On lower courts, we saw in the summer of 2005 the contentious battles over the nomination of Priscilla Owens and Janice Rogers Brown for federal courts. Owens was finally confirmed for her seat on a federal appellate court and Brown now serves on the United States Court of Appeals for the District of Columbia Circuit.

Recently, a similar, but less contentious battle over the Governor John Corzine's nominee for chief justice of the New Jersey Supreme Court has brought to light this battle over lower court nominees. Corzine nominated Stuart Rabner, former attorney general for the state, but some minorities in the New Jersey Senate criticized Corzine for Rabner's nomination citing the fact that not as much consideration was given to minority candidates.

Rabner was confirmed by a vote of 36-1 indicating that although there was concern over his nomination, this did not pose much of a threat to his nomination. It appears, therefore that either credentials were more important in state legislators decision to confirm Rabner or that his political ideology was in line with that of state legislators despite concerns over his race.

Composition of the Court & the NSA Terrorist Surveillance Program

The controversy over the NSA terrorist surveillance program may actually have some connection to the current composition of the Court as it stands right now.

Recall that nearly a year and a half ago White House Legal Counsel Harriet Miers withdrew her nomination. The reasons given for her nomination were quite vague. While many speculated that she did not want to participate in a confirmation process which would cause both political parties much anguish, there was also one other factor. A quick read of her letter withdrawing her name from the nomination process sheds light on the fact that the White House may have been trying to prevent the public from perusing confidential documents, perhaps regarding the NSA terrorist surveillance program. The text of her letter reads:



Dear Mr. President:


I write to withdraw as a nominee to serve as an associate justice on the Supreme Court of the United States. I have been greatly honored and humbled by the confidence that you have shown in me, and have appreciated immensely your support and the support of many others. However, I am concerned that the confirmation process presents a burden for the White House and our staff that is not in the best interest of the country.


As you know, members of the Senate have indicated their intention to seek documents about my service in the White House in order to judge whether to support me. I have been informed repeatedly that in lieu of records, I would be expected to testify about my service in the White House to demonstrate my experience and judicial philosophy. While I believe that my lengthy career provides sufficient evidence for consideration of my nomination, I am convinced the efforts to obtain Executive Branch materials and information will continue.


As I stated in my acceptance remarks in the Oval Office, the strength and independence of our three branches of government are critical to the continued success of this great nation. Repeatedly in the course of the process of confirmation for nominees for other positions, I have steadfastly maintained that the independence of the Executive Branch be preserved and its confidential documents and information not be released to further a confirmation process. I feel compelled to adhere to this position, especially related to my own nomination. Protection of the prerogatives of the Executive Branch and continued pursuit of my confirmation are in tension. I have decided that seeking my confirmation should yield.


I share your commitment to appointing judges with a conservative judicial philosophy, and I look forward to continuing to support your efforts to provide the American people judges who will interpret the law, not make it. I am most grateful for the opportunity to have served your administration and this country.



Most respectfully,


Harriet Ellan Miers



While there is no conclusive proof of what these documents were, it remains interesting to speculate that these documents contain secrets about the NSA terrorist surveillance program.

Pearson as a Symbol of Increasing Litigiousness in American Society

D.C. administrative law judge, Roy Pearson, is giving lawyers and jurists alike a bad name. If lawyers--who may eventually become judges--didn't already have enough of a bad name already, Pearson is taking the reputation of jurists down to a new historically low level.

According to a June 21st ABC report on the pants lawsuit saga that is currently clogging our overloaded judicial system (with which Pearson should himself be familiar and therefore should be ashamed of clogging it even more with useless lawsuits), Pearson broke down in tears during his testimony detailing the traumatic events of losing his pants. ABC reports:

A Washington, D.C. law judge broke down in tears and had to take a break from his testimony because he became too emotional while questioning himself about his experience with a missing pair of pants....

But as he explained the details of the missing pants, Pearson struggled to get through his hour and a half of testimony, most of which concerned his credentials and his background.

He became visibly emotional when he reached the point in the story where he confronted Soo Chung from the dry cleaning store.

"These are not my pants,'' he testified yesterday, telling her "I have in my adult life, with one exception, never worn pants with cuffs."

But Chung insisted, Pearson testified.

"These are your pants."

Pearson rushed from the courtroom, tears streaming down his face.

Poor Pearson.

Pearson's case really represents only the tip of the iceberg in an increasingly litigious American society. According to Professor Robert Kagan in his piece entitled American Adversarialism, the number of cases being appealed today is about fifteen times that of the number in 1960--an increase of nearly 1500% in appeals.

No New Jurisprudence in Enemy Combatant Decision

While much has been made of the decision of the 4th Circuit Court of Appeals to curtail powers of the president to declare civilians "enemy combatants" and hold them indefinitely without trial, the Court of Appeals appears to only affirm what the USSC decided in Hamdi v. Rumsfeld (2004). Justice O'Connor wrote:

While we accord the greatest respect and consideration to the judgments of military authorities in matters relating to the actual prosecution of a war, and recognize that the scope of that discretion necessarily is wide, it does not infringe on the core role of the military for the courts to exercise their own time-honored and constitutionally mandated roles of reviewing and resolving claims like those presented here. Cf. Korematsu v. United States, 323 U. S. 214, 233–234 (1944) (Murphy, J., dissenting) ("[L]ike other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled"); Sterling v. Constantin, 287 U. S. 378, 401 (1932) ("What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions").

In sum, while the full protections that accompany challenges to detentions in other settings may prove unworkable and inappropriate in the enemy-combatant setting, the threats to military operations posed by a basic system of independent review are not so weighty as to trump a citizen’s core rights to challenge meaningfully the Government’s case and to be heard by an impartial adjudicator.

Indeed, the 4th Circuit's decision (oddly enough one which was overturned in the Hamdi case) falls in line with the Court's reasoning approximately 3 years ago. Indefinite detention of so-called "enemy combatants" is unconstitutional and unsound use of governmental power.

Wrong Issue Addressed in Caretaker Agency Case

Today's decision by the USSC to uphold the Department of Labor's interpretation of a 1974 Fair Labor Standards Amendment lacks the right frame of reference. The Department's interpretation of the Fair Standards Amendment is that it exempted caretakers contracted in the home from minimum wage and maximum hour rules of the Fair Labor Standards Act of 1938. What this essentially means is that this subset of caretakers are subject to the whims of the labor agency contracting them. Caretakers can be paid anything and can be required to work as many hours, without being paid overtime by the contracting agency.

A caretaker who was contracted to the home sued her employment agency for refusing to pay her for her overtime work. This raises, what should have been the appropriate frame for viewing the case: due process of law. Although this was not the question before the Court when they decided this case, the interpretation of the law comes into conflict with this basic right guaranteed by the 14th Amendment. Section 1 of the 14th Amendment reads:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The caretaker lost her compensation for the hours she worked overtime and thus was deprived of property that was rightfully hers. While the Court finds that the process of creating the law was within reason and that the Department of Labor could interpret the FLSA amendment in such a way as to exclude caretakers from the regulations imposed by the FLSA, the law itself should not be constitutionally sound. It is really that question which the USSC failed to answer in its opinion and should have been the framing of the issue in the case.

Life Appointment of Justices

Life appointment of the justices sitting on the USSC--as long as they behave well--has raised many concerns. The concerns range from certain presidents having more control over the political ideology of the Court to justices staying on the job far after their health has compromised their capacity to do the job.

The justice which currently comes to mind is CJ Rehnquist. Although he was clearly battling (and losing the battle) against thyroid cancer he remained steadfast in his desire to stay on the Court till his dying day. Concerns over the health and well-being of the justice have prompted some scholars such as James E. DiTullio and John B. Schochet to call for a constitutional amendment: give justices 18 year non-renewable terms on the Court instead of life appointment.

In their article: Saving This Honorable Court: A Proposal to Replace Life Tenure on the Supreme Court with Non-renewable Eighteen Year Terms argue that this amendment will be beneficial since it will reduce the influence of one president on the Court, the influence of age on the choice of nominees (who may lack the appropriate experience if too young) and the desire of justices to stay on the Court past their prime.

National Security & "Don't Ask, Don't Tell"

One of the principle reasons why the U.S. government argues that the "Don't ask, Don't tell" policy of the military is valid is that it essentially helps national security. The Department of Defense Directive 1332 from January 1981 states:

"Homosexuality is incompatible with military service. The presence in the military environment of persons who engage in homosexual conduct or who, by their statements, demonstrate a propensity to engage in homosexual conduct, seriously impairs the accomplishment of the military mission. The presence of such members adversely affects the ability of the armed forces to maintain discipline, good order, and morale; to foster mutual trust and confidence among service members; to insure the integrity of the system of rank and command; to facilitate assignment and worldwide deployment of service members who frequently must live and work in close conditions affording minimal privacy; to recruit and retain members of the armed forces; to maintain the public acceptability of military service; and to prevent breaches of security." (emphasis added)

Since people in the armed services will not be able to function and live and work with those of different sexual orientations, the government bans homosexuals from serving in the armed forces. The government prioritizes the need to raise and support armies for national security over the desire of gay people to serve in the armed forces. The government views the situation in a dichotomous fashion: either have all straight people (or perceived to be straight people) serve in the army or all gay people. Since gay people a minority of the population and not all gay people want to serve in the armed forces, the government reasonably concludes that it must accommodate those straight people and offer them the most comfortable working conditions to have the largest and strongest army possible.

An editorial today in the NY Times, however, refutes this notion that the "Don't ask, Don't tell" policy promotes a strong army and fosters national security. In perhaps the clearest and most cogent response to the "Don't ask, don't tell" policy, Mr. Stephen Benjamin writes in a letter to the editor that firing gay military men and women who could be helping the U.S. uncover vital intelligence is indeed hurtful to national security. There is no compelling governmental interest in trying to discriminate against gay people. Mr. Benjamin says:

“Don’t ask, don’t tell” does nothing but deprive the military of talent it needs and invade the privacy of gay service members just trying to do their jobs and live their lives. Political and military leaders who support the current law may believe that homosexual soldiers threaten unit cohesion and military readiness, but the real damage is caused by denying enlistment to patriotic Americans and wrenching qualified individuals out of effective military units. This does not serve the military or the nation well.

Consider: more than 58 Arabic linguists have been kicked out since “don’t ask, don’t tell” was instituted. How much valuable intelligence could those men and women be providing today to troops in harm’s way?

In addition to those translators, 11,000 other service members have been ousted since the “don’t ask, don’t tell” policy was passed by Congress in 1993. Many held critical jobs in intelligence, medicine and counterterrorism. An untold number of closeted gay military members don’t re-enlist because of the pressure the law puts on them. This is the real cost of the ban — and, with our military so overcommitted and undermanned, it’s too high to pay.

In response to difficult recruiting prospects, the Army has already taken a number of steps, lengthening soldiers’ deployments to 15 months from 12, enlisting felons and extending the age limit to 42. Why then won’t Congress pass a bill like the Military Readiness Enhancement Act, which would repeal “don’t ask, don’t tell”? The bipartisan bill, by some analysts’ estimates, could add more than 41,000 soldiers — all gay, of course.

The USSC has refused to rule on the policy, perhaps avoiding being at the center of a storm of controversy and political unrest. As of today, more than 80% of Americans believe that gay people should be allowed to serve openly in the military.

Can Roberts Continue to Forge Consensus Among the Justices?

CJ John Roberts, at last year's Georgetown Law Center commencement ceremonies, said that unanimous opinions are something for which the Court should strive. They "promote clarity and guidance for the lawyers and for the lower courts trying to figure out what the Supreme Court meant," Roberts said. At the time of his commencement address, the Roberts Court had issued 31 unanimous opinions out of 46 total--a record for the modern USSC according to CNN.com.

Yet, this term reflects a different type of demeanor on the Roberts Court. Already three justices have read dissents aloud from the bench. This technique is used rather rarely and signals a growing discomfort among some justices with what may be a shifting ideology on the Court. Stevens read aloud his dissent in a case regarding juror selection and Ginsburg read aloud her dissents in two cases: one dealing with abortion and the other pay equity among men and women.

The Court must still issue two opinions on rather controversial issues: race and freedom of expression. It will be interesting to see if they can reach some common ground. They have done so before in rather controversial cases such as Brown v. Board of Education (1954) and in a more recent case dealing with gay rights, Rumsfeld v. FAIR (2006).

Primarily Primary Confusion

A lot of attention has been garnered by the recent presidential debates which are ostensibly gearing up for next year's primaries. With all of the recent changes in the primary system for voters it has become quite a confusing mess. It was confusing even before the changes. Who actually knows what the difference is between a primary and a caucus anyway? (For more information see Professor Stephen Wayne's book, The Road to the White House).

Approximately six years ago, the USSC handed down an influential decision, California Democratic Party v. Jones (2000) regarding the primary system in the state of California (and obviously other states which had similar systems). California operated what they called a "blanket primary" in which register voters (not registered with any specific party, but simply registered to vote) could choose their favorite candidate across party lines. (In most cases, voters must be registered with a particular party and then vote for only a candidate within that party). The California Democratic Party filed suit against the Secretary of State for violating the First Amendment right of political parties to freedom of association.

In a 7-2 decision, the Court struck down the blanket primary. In short the opinion, which was authored by Justice Scalia, said that the state of California could not provide a compelling enough of a reason for violating political parties' rights to freedom of association. Parties need to be able to exclude those that do not associate with it in selecting their nominee, or else the party's views will not be represented adequately. Scalia writes:

"In no area is the political association’s right to exclude more important than in the process of selecting its nominee. That process often determines the party’s positions on the most significant public policy issues of the day, and even when those positions are predetermined it is the nominee who becomes the party’s ambassador to the general electorate in winning it over to the party’s views."

Granted, that this is the case, it is still not understandable why getting a candidate whom the party likes matters at all. If this country was founded on democratic principles of a "government by and for the people" then why not open up the selection of candidates for a particular party to everyone? These candidates will eventually have to face all enfranchised voters anyway and if the majority of the population does not like either, then the election would be less fair. The majority of people who vote in the general election would have the least say at the most crucial stages of the game.

Framed in another way, the party's desire to be exclusive truly limits the value and of diverse veiwpoints and perspectives instead of increasing them. While Scalia writes that these types of candidates, since they must accommodate a range of views from the population, only become more "centrist" he refers to no social science or actual data. It is a weighty statement with nothing to back it up except general theorizing. In addition, it assumes that politicians cannot find ways to accommodate a diverse range of views while still satisfying most of their party platform. It is unlikely that candidates will be able to campaign for the general election anyway with the entire party platform intact since they will have to compromise then on issues to gain voter support. The rationale is messy since it really delays what inevitably happens: candidates will need to figure out ways to appeal to the entire population, if they are to be elected.

Stevens' Dissent in Juror Selection for Death Penalty Case

Representing the liberal contingent of justices on the Court, Justice Stevens read aloud his dissent in a case which affected juror selection for death penalty cases. It is the third time that a justice has read aloud a dissent this term.

The dissent in this case by Justice Stevens, Justice Ginsburg, Justice Souter and Justice Breyer seems to be quite flawed. The case was about juror selection for a trial that had the death penalty as one possible punishment. The law regarding juror selection was that jurors had to be able to consider the death penalty even if they were against it. The juror that was replaced had said that only if the person on trial had the possibility to walk free would he consider the death penalty. Prosecutors argued that this amounted to an automatic favoring of the life sentence over the death penalty and therefore would unfairly bias the verdict, giving the death penalty no chance at all of becoming the punishment.

The logic of that argument is sound. Steven's dissent is questionable when it comes to jurisprudence in addressing the issue at hand. He begins his dissent by writing, "Millions of Americans oppose the death penalty. A cross section of virtually every community in the country includes citizens who firmly believe the death penalty is unjust but who nevertheless are qualified to serve as jurors in capital cases. An individual’s opinion that a life sentence without the possibility of parole is the severest sentence that should be imposed in all but the most heinous cases does not even arguably 'prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.'"

First of all, it does not matter what "millions of Americans" think. They may in fact be wrong. It would not be the first time that the majority of Americans would be wrong about a legal issue such as this.

Second, this case is not about the death penalty itself, but rather about the laws governing selection of jurors for a particular type of case. If the juror cannot consider one type of punishment, then that severely impedes his or her ability to serve as an impartial juror in deciding the fate of the person on trial.

Had the case been about the actual death penalty, perhaps Steven's comments would have been more appropriate. But until that issue comes before the Court Steven's jurisprudence should focus on the issue at hand.

White House Response to Khadr Ruling

The White House, today, issued a response to the Khadr ruling saying that it disagreed with the judge's decision. Judge Brownback's ruling seems to have also spurred a similar ruling later on yesterday by another judge in looking at a case brought against Salim Ahmed Hamdan.

The article appears to confirm that On the Docket's suspicions are right about the refiling of Khadr's charges. The article reads:

"'Judge Brownback did not question that the military commission would constitute the appropriate forum in which to try a member of al-Qaeda for alleged war crimes,' said Maj. Beth Kubala, a spokeswoman for the Office of Military Commissions. "He determined that, as a technical matter, the existing CSRT definition was not identical to the definition under the MCA."

Military officials said yesterday that they could restart the tribunal process to allow them to add the word 'unlawful' to their records. Officials maintained, however, that the tribunals have largely concluded that the detainees are members of al-Qaeda or other terrorist groups and therefore their battlefield actions are inherently unlawful. Khadr will not be released following the decision."

Needless Antiabortion Movement Scuffle

According to yesterday's article by Washington Post staff writer, Alan Cooperman, there appears to be a rift in the pro-life coalition of evangelical Protestants, Roman Catholics, and Focus on the Family. The split in the pro-life group comes over the USSC decision in Gonzales v. Carhart (2007), a decision which is widely viewed by many as a setback for the pro-choice movement.

The scuffle between Focus on the Family founder James Dobson and evangelicals surrounds the Gonzales decision and determining whether or not the decision is really a setback for the pro-choice movement at all. Those in the pro-life movement who have criticized the decision rightly determine that the Court leaves entact the vast majority of methods used to conduct abortions. The Partial Birth Abortion Act of 2003 also has a health exception for mothers desiring an abortion in the second and third trimesters.

Thus the decision reaffirms the constitutional jurisprudence of the Court from previous decisions such as Stenberg v. Carhart (2000) and also Casey v. Planned Parenthood (1996). The Court is still talking about the ability of mothers to choose whether or not to abort when the fetus is previable (approximately before 21-28 weeks into gestation). In addition, the health exception is present for exigencies when the mother's health is put at risk by her baby.

Thus neither the pro-life or pro-choice movement appears to have gone backward or forward. If in fact that justices had struck down the law, the pro-choice movement would have admittedly garnered more strength. Yet, this decision does not serve to weaken the pro-choice movement at all. It may have provided the pro-life movement with more ammunition in the future, but ammunition against what?

It appears that the Court has found the right balance. Mothers can choose to abort regardless of their health previability, but after previability they cannot unless their health is at risk.

Indecency Ruling not about First Amendment Rights

Today, broadcasters won a victory over the right to "fleeting" use of profanity. The U.S. Court of Appeals for the 2nd Circuit in New York ruled against fines filed by the Federal Communications Commission against Fox television network. Movie stars, Cher and Nicole Richie, apparently used both the f-word and s-word during the 2002 Billboard Music Awards.

According to an article by The Washington Post, the Court of Appeals said that the fines imposed by the FCC are uncharacteristic of their usual statutory and administrative policies. Moreover, the FCC, according to the court, failed to articulate a reasoned basis for the policy.

Yet, the Post article quotes the FCC Chairman giving a reasoned basis for the policy. He says, "I think the commission had done the right thing in trying to protect families from that kind of language, and I think it's unfortunate that the court in New York has said that this kind of language is appropriate on TV."

Perhaps what the Court of Appeals is trying to articulate in its opinion is a refutation to the FCC Chairman's logic of protecting families and children from "that kind of language." "Fleeting" use of expletives on national television is usually not something planned, but rather an on-the-spot kind of occurrence. Fining networks for something that they could not have foreseen or could not have predicted is not legally enforceable, nor fair.

Indeed, today's decision against the FCC is not one which looks to First Amendment rights of free speech, but rather the practicality of the law itself. In theory goal of the law is good. We want to protect families and children from profanity. Profanity is not essential for communication of important ideas. But in this case, operationalizing that principle into sound legal principle is most likely where the FCC fell short.

Showdown between Courts & Congress over Military Tribunals yet again?

The Washington Post reports that Omar Khadr, the 15 year old child soldier who was caught in Afghanistan, is now free of the charges brought against him by the government. The judge presiding over the case, Army Col. Peter Brownback, dismissed all charges on the basis of the Military Commissions Act which allows military tribunals to try only "unlawful alien enemy combatants." Khadr was categorized as simply an "alien enemy combatant" by the Bush administration.

The Military Commissions Act was passed by Congress in response to the USSC decision in Hamdan v. Rumsfeld (2006) which declared among other things that the Court could decide whether or not the military tribunal for Hamdan was justified. It found that the tribunal was not justified because it violated the Uniform Code of Military Justice and the Geneva Convention. In short the decision rebuked the government's assessment of the lawfulness of these military tribunals. Now, the act which was created to limit the court's powers in looking at these tribunals is being used against the government. There appears to be a battle going on between courts and Congress over this matter yet again.

In defining the ability of the military tribunals to try only "unlawful alien enemy combatants" the government did not intend to exclude people such as Khadr who were not associated with any particular government engaged in a war with the U.S. He was a member of Al-Qaeda, not part of a regularly constituted body of people fighting on behalf of a state such as an army or navy.

Most likely the government will reclassify Mr. Khadr and send him before the tribunal again. Hopefully we will get to the interesting legal question soon about how the court will deal with the fact that Mr. Khadr was only a child (under our laws) when he committed war crimes on behalf of Al-Qaeda.

More on the Seattle Decision

An editorial today from the NY Times by Adam Cohen appears to agree with On the Docket's prediction about the USSC striking down the integrationist-tie breaker.

Yet, the editorial appears to contribute the decision mostly to the changing ideology of the Court rather than constitutional jurisprudence and precedent. Cohen rather harshly blames Justice Thomas for the predicted outcome of the Seattle decision.

It is hard to say, whether or not Cohen is right, but the evidence from the oral argument transcripts appear to point in the other direction. Liberals on the Court such as Justice Breyer and Justice Souter appear to be the ones whom Cohen should blame. Both Souter and Breyer upheld the affirmative action program seen in the University of Michigan Law School case in 2003, but it appears that they have a different take on the integration plan by Seattle. They do so not because they are not liberal, but rather because the motivations and rationale behind the Seattle integration plan are different. Applicants are chosen solely on the basis of race, rather than an individualized selection process which also takes into account academic merit of the applicants. Take a look at what was said during oral arguments:

JUSTICE SOUTER: Let me help you out by taking you back to my question. One of the characteristics of the affirmative action cases was the displacement of some other otherwise generally acknowledged relevant criterion such as ability as shown in test scores, grade point averages, things like that; and that was a characteristic of those cases.

It is not a characteristic of this case, as I understand it.

***

JUSTICE BREYER: But I think that the point that Justice Souter is trying to make, as I understand it, is of course there are similarities to Gratz, they can choose, but there's a big difference. The similarity in Grutter, or the difference in Grutter and Gratz is that you had to prod a school that was supposed to be better than others, that the members of that school, the faculty and the administration tried to make it
better than others. It was an elite merit selection academy. And if you put the black person in, the white person can't get the benefit of that.

Here we have no merit selection system. Merit is not an issue. The object of the people who run this place is not to create a school better than others, it is to equalize the schools. That's in principle and in practice, if you look at the numbers, you see that the six schools that were at the top, their position would shift radically from year to year, preferences was about equal among them. They have the same curriculum, they have similar faculties, and I don't think anyone can say either in theory or in practice, that one of these schools happened to be like that prize of University of Michigan, a merit selection system. That, I think, was a major difference that he was getting at, why is this not the same kind of thing? That was at issue in Grutter and Gratz. Now what is your response to that?

Cohen makes a weighty claim against Justice Thomas. Thomas, himself, as Cohen points out does, not say very much during the oral arguments, so it is hard to tell what is going on his his mind about the intergrationist tie breaker at this point. Given previous rulings, though, he will most likely vote against it. Yet, it appears that the Seattle decision will have more than just Thomas advocating against it.

The Right to Die

Dr. Jack Kevorkian, also known as "Dr. Death," was recently released from prison after serving an eight year term. His conviction of helping 130 terminally ill people commit suicide brought to the national spotlight the debate on the right to die and to die with dignity.

Kevorkian was convicted of second-degree murder by assisting a suicide in Michigan. It is interesting to characterize Dr. Kevorkian's actions as murder instead of aid. Is he an accomplice to a crime or is he actually committing a crime by himself? In other words is suicide a crime even if the patient expresses the wish to die? USSC precedent on this issue remains rather silent and decisions such as Glucksberg v. Washington have made it clear that the Court has not decided this issue in past cases. Justice O'Connor in her concurring opinion makes this quite clear. She says:

"The Court frames the issue in this case as whether the Due Process Clause of the Constitution protects a "right to commit suicide which itself includes a right to assistance in doing so," ante, at 18, and concludes that our Nation's history, legal traditions, and practices do not support the existence of such a right. I join the Court's opinions because I agree that there is no generalized right to "commit suicide." But respondents urge us to address the narrower question whether a mentally competent person who is experiencing great suffering has a constitutionally cognizable interest in controlling the circumstances of his or her imminent death. I see no need to reach that question in the context of the facial challenges to the New York and Washington laws at issue here. See ante, at 18 ("The Washington statute at issue in this case prohibits `aid[ing] another person to attempt suicide,'. . . and, thus, the question before us is whether the `liberty' specially protected by the Due Process Clause includes a right to commit suicide which itself includes a right to assistance in doing so"). "

The issue of the mental capacity of those wishing to die is another issue entirely, but the debate over the legality of suicide does not end there. What about those who wish to die that are in perfect health and have families to support? It seems that the issue comes down to a right to privacy--the right to be left alone. This right to privacy, however, must be balanced with the effects of granting that right. For example, if a single parent wishes to commit suicide, should our laws allow her to do so, given that she is raising and supporting a child? What effects would her suicide have on the child? It is an issue that has been raised before by John S. Mill in his essay On Liberty. He says:

"I fully admit that the mischief which a person does to himself, may seriously affect, both through their sympathies and their interests, those nearly connected with him, and in a minor degree, society at large. When, by conduct of this sort, a person is led to violate a distinct and assignable obligation to any other person or persons, the case is taken out of the self-regarding class, and becomes amenable to moral disapprobation in the proper sense of the term. If, for example, a man, through intemperance or extravagance, becomes unable to pay his debts, or, having undertaken the moral responsibility of a family, becomes from the same cause incapable of supporting or educating them, he is deservedly reprobated, and might be justly punished; but it is for the breach of duty to his family or creditors, not for the extravagance. If the resources which ought to have been devoted to them, had been diverted from them for the most prudent investment, the moral culpability would have been the same."

But he goes onto say:

"But with regard to the merely contingent or, as it may be called, constructive injury which a person causes to society, by conduct which neither violates any specific duty to the public, nor occasions perceptible hurt to any assignable individual except himself; the inconvenience is one which society can afford to bear, for the sake of the greater good of human freedom."

It appears, thus, that Mill would allow for an individual without any obligation to others to have the right to die. It will be interesting to see if any challenges reach the Court now that Kevorkian is out of prison and has said that he will challenge the current thinking about assisted suicide. It will be interesting as well to see how the Court handles these arguments.

Only in California...

It must be a slow newsday in the world today. The NY Times just recently reported that gay California inmates will be allowed to have so-called "conjugal visits" just as their heterosexual counterparts.

Gay rights groups such as the National Center for Lesbian Rights in SFO called the decision a "great leap forward" in the movement for equality. These visits allow more than just partners of gay inmates to visit. Family members and children have often utilized this time to visit with their mothers and fathers who may be imprisoned.

The decision by the California comes after threats to sue over the policy which banned same-sex partners from visiting inmates because the government did not view them as family. Equality California says that there was just no reasonable justification for having the policy in place.

While gay rights advocates are happy about the change in policy there are indeed more important issues that the movement could focus on at this time. The perception about "conjugal visits" is one of moral depravity and impropriety. While some family members do visit inmates during these visits, it is highly associated and suggestive of sexual activity with an inmate's partner. Is this what the movement is concerned with? If the gay rights movement is to appear upstanding enough to earn the rights of marriage equality it must do it through means that also appear respectable and avoid getting caught in the wayside.

Children at Guantánamo Bay

Today's article in The New York Times regarding child soldiers detained during the "War on Terror" at Guantánamo Bay raises interesting questions about how children should be treated for committing war crimes.

The article explains that "the shrapnel from the grenade [thrown by the child]... ripped through the skull of Sgt. First Class Christopher J. Speer, who was 28 when he died.To American military prosecutors, Mr. Khadr is a committed Al Qaeda operative, spy and killer who must be held accountable for killing Sergeant Speer in 2002 and for other bloody acts he committed in Afghanistan. But there is one fact that may not fit easily into the government’s portrait of Mr. Khadr: He was 15 at the time."

Mr. Khadr is now 20. International law does not prohibit people under 18 from being tried for crimes of war. Lawyers for Mr. Khadr argue that instead of being perceived as a war criminal, he should be thought of as a victim of warfare. The article reads:

"The prosecutors, they say, included in their charges acts that occurred when Mr. Khadr was younger than 10. Mr. Khadr “was subject to undue adult influences,” said Muneer I. Ahmad, an associate professor at the American University Washington College of Law, who has represented Mr. Khadr.

'If Omar had had his free choice,' Professor Ahmad said, 'what he would have chosen to do is ride horses, play soccer and read Harry Potter books.'"

Speculation about what Mr. Khadr would have done if he were not subject to "undue adult influences" is a start. But what should concern lawyers and advocates even more now is what Mr. Khadr will do if he is acquitted of these charges. Would he willingly commit acts against the U.S. now that he is an adult (according to law) and can make his own choices? This should really be the concern of advocates on both sides of the issue.

The First Lady of the Court: Sandra Day O'Connor

It has almost been the first full term with both CJ Roberts and Justice Alito. Without a doubt media coverage will reflect upon what these two jurists have done while on the Court and possibly how they have changed the ideological direction of the highest court in the land.

Yet, not much media attention has been earned by the first lady of the USSC since her retirement in July 2005. What has she done since and what is she planning to do?

Apparently, O'Connor has accepted a position as chancellor of the law school of William and Mary College. In addition to her other commitments such as speech and book writing, caring for her husband (who currently suffers from Alzheimer's disease), appeals court hearings, O'Connor also decided to dabble a bit with foreign policy. She served on the committee which was commissioned by Congress to find a "new way forward in Iraq."

She maintains her chambers in the USSC building till this day as all retired justices are allowed to do.

TB, Public Health & Individual Civil Liberties

A man with a particularly dangerous drug resistant strain of TB was recently quarantined by the U.S. government in Denver, CO. The man--Andrew Speaker--was planning to fly to Paris from Atlanta, GA, after having tested positive for TB. He alleges that his doctor only "preferred" that he not fly. Apparently no medical professional had made it explicitly clear to him that he could not fly as he would infect and endanger those flying with him.

The attention that this story has garnered, however, raises an interesting constitutional question about balancing individual liberties with the common good. If in fact Mr. Speaker had been prohibited to fly and if his now apologetic self were not as caring for the health of others, would the U.S. be able to curtail his "right to be left alone" over the concern of possible infection during air travel? What about equal protection? Can the government treat individuals differently based on their health status? It is a point that has been raised before by Professor Lawrence Gostin of the Georgetown Law Center. In analyzing the World Health Organization International Health Regulations, Gostin concludes that sometimes compulsory measures against individuals with infectious diseases may be justified. He says:

"Yet, infectious disease powers curtail individual freedoms, including privacy (eg, surveillance), bodily integrity (eg, compulsory treatment), and liberty (eg, travel restrictions and quarantine)....States should have the power to sanction individuals with dangerous contagious diseases who refuse medical interventions."

It is hard to come to a conclusive answer. Not much precedent exists on the issue. How the justices would perceive the actual issue at hand would also be another question. Would it be an issue of national security? Could they perceive Mr. Speaker as essentially a vessel for spreading a hazardous biological weapon? Or would the issue be a more complicated balancing act, depending upon how serious the actual infection was? Sick people fly on airplanes all the time, but in this case the type of infection mattered.

Gay Marriage & Court Deference to the Legislature

A March 2007 article from Stateline has assessed gay marriage cases in California, Connecticut, and Maryland as "ripe for decision." The legal background of these states regarding same-sex legislation is rather mixed, so it will be interesting to see what the courts in each state decide. Connecticut has a law allowing for civil unions. The California state legislature approved a bill legalizing same-sex marriage, but Governor Schwarzenegger vetoed the bill. Maryland has not passed any legislation allowing legal recognition of same-sex relationships.

Today, New Hampshire passed a bill allowing same-sex couples to enter into civil unions. It is the fourth state to join Vermont, Connecticut, and New Jersey in offering benefits equal to that of marriage (but without calling the union marriage). Over the last two years it appears that the country has grown increasingly aware and accepting of same-sex relationships. The backlash created by the Supreme Judicial Court of Massachusetts appears to have subsided. Amendments banning same-sex marriage have begun to pass with lower margins of victory. In fact, Arizona rejected one such amendment in the 2006 midterm elections.

In granting same-sex couples a judicial victory the courts from California, Connecticut, and Maryland should remember the backlash caused right after both the Hawaii Supreme Court decision in 1993 and the MA SJC decision in 2003. The Hawaii decision prompted Congress to pass the 1996 Defense of Marriage Act. The MA SJC decision pushed President Bush to call for the Federal Marriage Amendment and incited 11 states to pass constitutional amendments banning same-sex marriage.

What should also be noted by these courts is that court decisions in favor of same-sex marriage did not always garner a negative reaction. When other state courts have deferred to the legislature to create a legal remedy in favor of same-sex couples, this type of deference has led to long term gains for same-sex couples without the backlash. The cases in Vermont and in New Jersey are illustrative. There were no federal pieces of legislation passed against same-sex marriage or president's going on a crusade against same-sex unions.

Only time will tell what strategies these courts choose, but it will be interesting to see whether the turbulent history that same-sex marriage has had with courts is taken into consideration by judges authoring the upcoming decisions.