Tuesday, July 31, 2007

No Constitutional Showdown Over Iraq in Near Future

There have been some whispers about a constitutional showdown between the President and Congress over the Iraq war. There are those in Congress who are against the war and against Bush's plans to continue the war until--as of yet--some undefined deadline. The constitutional question would be whether Bush's power as commander in chief, the sole organ of foreign policy, and the executive overrules the wishes of a Congress which has the power to declare war and raise and support an army.

Yet, the whispers about this constitutional showdown are unfounded. While the majority of Americans do not favor our continued presence in Iraq--since according to a
Washington Post-ABC News poll only 31% of Americans approve of Bush's handling of the war--the American people's views do not necessarily correlate with the views of those in political office. Congress is much more divided on the war than the American people. Recently, Senate Democrats tried to filibuster a bill which would give Bush more time in Iraq, preventing the troops from coming home. To maintain the filibuster against the bill, Democrats needed 60 votes, but fell short of these votes coming in at 52-47 in favor of the filibuster. While a majority clearly did not want the bill, the divide in the Senate is not as big as the divided in the American population over the war in Iraq.

If courts ever receive a lawsuit over the Iraq war, most likely they will reject the case not on the merits, but rather on the
justiciability of the case alone. The justiciability doctrine comprises four basic areas: standing, political question, mootness, and ripeness. Most likely judges and justices alike will refuse to enter into such a sticky legal and political case as one between the President and the Congress over one of the most contentious wars in our Nation's history. Courts may claim that in order for a Senator or a Representative to bring the case to court, they need a majority of Congress to sue the President and fulfill the requirement of standing. Not only a majority of the Senate, but Congress as a whole needs to be harmed in some way to have standing. If that criterion is fulfilled then Courts can dodge the question another way: the political question doctrine. It is elucidated quite well by Justice Brennan in the Goldwater v. Carter case.

"As set forth in the seminal case of Baker v. Carr,
369 U.S. 186, 217 (1962), the doctrine incorporates three inquiries: (i) Does the issue involve resolution of questions committed by the text of the Constitution to a coordinate branch of Government? (ii) Would resolution of the question demand that a court move beyond areas of judicial expertise? (iii) Do prudential considerations counsel against judicial intervention?"

Perhaps judges would say that in the charged political atmosphere prudential considerations counsel against judicial intervention over the Iraq war. Terminating hostilities during war time have been decided by the
USSC as powers given to both the President and the Congress. The answer is not a definitive one by any means. The U.S. Constitution itself is rather vague on who holds that power. But, it would be a rather contentious and difficult issue for courts to deal with and one that would likely not end up creating a happy resolution for either side. Courts may possibly use this reason as an excuse for stepping aside and letting Bush and Congress duke out the war on their own terms.

Saturday, July 28, 2007

Response to America's View of an Increasingly Conservative USSC

A recent Washington Post article has found that an increasing percentage of Americans view the USSC as "too conservative." While about half of the respondents in a Washington Post-ABC News poll view the Court as issuing "balanced" decisions (perhaps as many ideologically conservative decisions as liberal decisions), there was a jump in the percentage that felt the Court was "too conservative": 31 percent, up from 19 percent in 2005. Those who felt that the Court issued "balanced" decisions also decline from 55 percent to 47 percent in the last two years since the nominations of CJ Roberts and Justice Alito.

The poll is interesting in trying to gauge and analyze how the general American populus views the Court. Given the fact that most of the decisions regarding abortion, race, and free speech this term have been quite complicated it seems that the majority of the Americans surveyed in this poll have oversimplified the issues and the opinions of the newly appointed justices currently sitting on the Court.

While the bottom line of these decisions (regarding abortion, race, and free speech) was against what one normally would view as a liberal position on these issues, the decisions themselves and how the justices reached their respective conclusions matters in how future justices and judges will interpret their decisions. Admittedly, the free speech test applied in Morse was slightly confusing and rather vague in its application, but those decisions regarding abortion and race all
are very careful in how they talk about restricting the rights of abortion and also the use of race in high school admissions.

Perhaps most of the sentiment among Americans about the shift in the High Court comes from what they read and listen to on a daily basis: the media. The media works under time constraints and caters to a public that does not necessarily have the time to digest complicated legal analysis or jargon. Perhaps the bottom line of these decisions is the only real thing that is communicated by the media to the public and having seen only the bottom line, the public perception of the Court and its justices' thinking is not fully understood.

Friday, July 27, 2007

Facebook Facing Lawsuit

If he had an actual Facebook account, Facebook owner Mark Zuckerberg may soon have had to update his status to "sued." According to the NY Times, Zuckerberg has been sued for allegedly pilfering ConnectU's business model and code for a similar online profile student directory service.

Although the case was thrown out by a MA federal judge, due to a lack of evidence, the case is interesting and fertile ground for intellectual property law. If it is in fact true that Zuckerberg did steal the code and idea from ConnectU, it is still questionable about how much Zuckerberg actually owes ConnectU owners. While it is true that Zuckerberg would not have had such an easy time starting up Facebook (if he did in fact steal the code), Zuckerberg has also had to work very hard to get Facebook the publicity and usership that it has currently.

How much of his current success, then would he owe to ConnectU and how much should he rightfully take credit for?

Sunday, July 15, 2007

Socio-economic Factors Fail in Creating a "Diverse" Student Body

A NY Times article reports that high schools are having trouble creating diverse student bodies using socioeconomic factors rather than race. The article reports when schools in San Francisco began considering other factors besides race to create a diverse student body, these plans did not work. While the premise of race correlating with income is fertile ground for creating a diverse student body in theory, in practice the experience of using such criteria has proved quite difficult.

What does this mean for the use of race in creating a diverse student body? It at the very least does not entirely foreclose the option of utilizing factors that favor certain races in designing a racially diverse student body. Justice Kennedy's opinion in the recent Seattle schools case therefore is very prescient in emphasizing the fact that in some cases race may actually be a useful means of selecting and rejecting certain applicants for high school admission. (Admissions to undergraduate and graduate education remain an entirely separate issue addressed in two other affirmative action cases).

The findings by the San Francisco schools also raise interesting questions about what exactly diversity means. What precisely constitutes a "diverse" student body? What's wrong with having an entirely black student body? For example, a high school student body could be composed entirely of black students. However, if one digs deeper, and gets to know each individual student, we find that some are children of wealthy doctors, lawyers or business men. Some come from housing projects nearby. Others are immigrants who recently came from Sudan as refugees and are learning English as a second language. Some of these students aspire to be artists, NBA basketball players, president, or the U.N. Secretary General. Would not someone say that this is a diverse group of students who could learn from each other's different experiences, talents, and backgrounds?

There are real and substantive differences between each individual student in the scenario that could provide educational benefits. Are the educational benefits even greater when these students can visually see differences in skin color? An interesting question that courts may have to confront one day (perhaps rather soon) in the future.

Wednesday, July 4, 2007

Race in Schools: A Move Beyond Integration to Diversity

Many journalists have categorized the recent decision regarding race-based assignments in high schools as a win for conservatives. After all the decision, Parents Involved in Community Schools v. Seattle School District No. 1, seems to turn back the clock on progress that has been made regarding race and race relations in the United States.

Yet summing up the decision in so many words is not that simple. The 185 page decision is quite nuanced. The conservative plurality authored by CJ Roberts, and joined by Scalia, Thomas, Alito and Kennedy is quite careful in not striking down any race based means of achieving the high school's end goal of creating a diverse student body, but only goes so far as to say that purely race based means of doing so are unconstitutional. The opinion does not overturn any past precedent, but merely serves to clarify it. Kennedy's concurrence serves to emphasize this distinction.

He says:

"This Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated societythat ensures equal opportunity for all of its children. A compelling interest exists in avoiding racial isolation, an interest that a school district, in its discretion and expertise, may choose to pursue. Likewise, a district may consider it a compelling interest to achieve a diverse student population. Race may be one component of that diversity, but other demographic factors, plus special talents and needs, should also be considered. What the government is not permitted to do, absent a showing of necessity not made here, is to classify every student on the basis of race and to assign each of them to schools based on that classification. Crude measures of this sort threaten to reduce children to racial chits valued and traded according to one school’s supply and another’s demand."

Both liberals and conservatives should agree that this crude classification of children solely on the basis of race is unconstitutional. It goes against the very meaning of the Equal Protection Clause. It would also go against the very individualized method of review that the Court in Grutter approved. The court made it explicit in the two University of Michigan affirmative action cases that the reason for approving one system of review and striking down another was the more individualized method of review where race was not equated with diversity, but one of many factors that could contribute to the meaning of diversity. Justice Kennedy should be applauded for upholding and making special note of this precedent, even though he did not join in the majority's opinion in Grutter.

The decision conforms to what much of Bakke, Grutter, and Gratz have told us over the past 30 years. The days of pure race based integration measures for simply remedying for the effects of past discrimination are over. We have moved beyond integration for the sole purposes of integration. Integration serves a new goal now. That new goal is diversity. The goal, it appears, serves a dual purpose: 1) increasing education and tolerance among members of society and 2) remedying for the effects of past discrimination.

While remedying for the effects of past discrimination may not be necessary anymore at some point (as O'Connor prophetically said in Grutter that affirmative action measures would be expected to end in 25 years), it seems that as long as there is a society that values education and tolerance, race will be an ever present factor in discussions about diversity and society will never truly be colorblind.