On the Docket: News on the U.S. Judiciary

NY Times Supports DC Gun Ban

2007-11-21T10:31:00.000-05:00

The NY Times recently published an editorial supporting the DC gun ban. Among its principle reasons for upholding the law were the change in times since the nation's founding and the violent reality of guns in homes.

The editorial can be found below:

"By agreeing yesterday to rule on whether provisions of the District of Columbia’s stringent gun control law violate the Second Amendment to the Constitution, the Supreme Court has inserted itself into a roiling public controversy with large ramifications for public safety. The court’s move sowed hope and fear among supporters of reasonable gun control, and it ratcheted up the suspense surrounding the court’s current term.

The hope, which we share, is that the court will rise above the hard-right ideology of some justices to render a decision respectful of the Constitution’s text and the violent consequences of denying government broad room to regulate guns. The fear is that it will not.

At issue is a 2-to-1 ruling last March by the United States Court of Appeals for the District of Columbia Circuit that found unconstitutional a law barring handguns in homes and requiring that shotguns and rifles be stored with trigger locks or disassembled. The ruling upheld a radical decision by a federal trial judge, who struck down the 31-year-old gun control law on spurious grounds that conform with the agenda of the anti-gun control lobby but cry out for rejection by the Supreme Court.

Much hinges on how the justices interpret the Second Amendment, which says: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.”

Opponents of gun control sometimes claim a constitutional prohibition on any serious regulation of individual gun ownership. The court last weighed in on the amendment in 1939, concluding, correctly in our view, that the only absolute right conferred on individuals is for the private ownership of guns that has “some reasonable relationship to the preservation of efficiency of a well-regulated militia.” The federal, state and local governments may impose restrictions on other uses — like the trigger guards — or outright bans on types of weapons. Appellate courts followed that interpretation, until last spring’s departure.

A lot has changed since the nation’s founding, when people kept muskets to be ready for militia service. What has not changed is the actual language of the Constitution. To get past the first limiting clauses of the Second Amendment to find an unalienable individual right to bear arms seems to require creative editing.

Beyond grappling with fairly esoteric arguments about the Second Amendment, the justices need to responsibly confront modern-day reality. A decision that upends needed gun controls currently in place around the country would imperil the lives of Americans."

U.S. Supreme Court Accepts Gun Ban Case

2007-11-20T22:58:00.001-05:00

A video recapping the soon-to-be contentious case over the DC gun ban. Given the Court's conservative leaning and the fact that the arguments on behalf of striking down the gun ban are based on the right to self defense, it's very likely that the Justices will rule in favor of striking down the law, setting a precedent that could change the course of gun control laws for a very long period of time.

Court Further Halts Executions

2007-11-15T15:18:00.000-05:00

The Supreme Court has stopped yet another execution as the justices wait to determine the compliance of execution by lethal injection with the 8th amendment in a case later next year. This time, the Court has stayed the execution of child killer Mark Schwab. Schwab deceived a child's family into believing that he was a reporter from a local newspaper and used that relationship to kidnap and murder the child. While the decision will surely outrage many across the country, the move was expected of the Supreme Court, which has taken steps in a number of cases to halt executions utilizing the injection method of the impending case Baze V. Rees.

More information about Schwab can be found on the CNN website or in the New York Times article.

Homosexual Workers to be Protected by Boldest Civil Rights Legislation Expansion in Over a Decade

2007-11-11T18:30:00.000-05:00

This past week the US House of Representatives passed the Employment Nondiscrimination Act. If also approved by the Senate and by President Bush, the legislation would extend for the first time the federal conception of equal protection to the gay, lesbian, and bisexual community. While the law would promise to prevent employers from failing or refusing to "hire or to discharge any individual, or otherwise discriminate against any individual with respect to the compensation, terms, and conditions or privileges of employment of the individual, because of such individual's actual or perceived sexual orientation," the bill has met disapproval from Democrats and gay rights advocates because of the conspicuously absent protection from discrimination over gender identity issues. Despite the drawbacks of the bill in current form, many still believe it represents great progress for the LGB community and the broad goal fought for over half a century to ensure equal rights in the workplace.

Read the New York Times article to learn more about the issue or track the bill's progress through the Senate and executive office.

Battle Over For Sale Sign Headed to Supreme Court

2007-11-11T15:26:00.001-05:00

The USSC may hear a rather odd and relatively unknown case regarding free speech. The speech regulated in this case is one not seen very often in First Amendment cases: a "For Sale" sign on a used car. The car owner who sued his local town, Glendale, OH, has won the most recent appeal. Attorneys for Glendale are taking it to the USSC. It will be interesting to see if the Justices decide to take the case since categorization of a "For Sale" sign as free speech does not seem very compelling.

Is a Law Degree Worth It Anymore?

2007-11-11T15:07:00.000-05:00

The answer is yes and no. For those headed to elite (Tier 1) law schools there are no worries. Tier 1 law schools include those such as Harvard, Georgetown, UVA, University of Chicago, and University of Michigan. Typically Tier 1 law schools need an LSAT of 165 or higher out of the scaled score of 180. GPAs to be admitted to these law schools vary from 3.67 to 4.0. For those headed to Tier 2 or lower forget about a law degree. While one may learn something at these schools the amount of money paid for a JD is not worth the future salary. To learn more, read the WSJ online article here.

A portion of the article can be found below:

"A law degree isn't necessarily a license to print money these days.

For graduates of elite law schools, prospects have never been better. Big law firms this year boosted their starting salaries to as high as $160,000. But the majority of law-school graduates are suffering from a supply-and-demand imbalance that's suppressing pay and job growth. The result: Graduates who don't score at the top of their class are struggling to find well-paying jobs to make payments on law-school debts that can exceed $100,000. Some are taking temporary contract work, reviewing documents for as little as $20 an hour, without benefits. And many are blaming their law schools for failing to warn them about the dark side of the job market."

Supreme Court Reinvestigates Compliance of Lethal Injection with the 8th Amendment

2007-10-29T00:56:00.000-05:00

Last week the Supreme Court halted the execution of Christopher Scott Emmett in Virginia hours before the procedure was to take place. Since agreeing in September to hear the case Baze V. Rees, a case that investigates whether execution by lethal injection is in accordance with the 8th amendment, the Supreme Court has granted several stay of executions in anticipation of the upcoming case. During this time period, many question if any executions, since most states currently use lethal injection, will be carried out without appeal.

To read more about Emmett, visit the Washington Post article.

Affirmative Action for LGBTQ?

2007-10-27T23:31:00.000-05:00

On the Docket will be hosting a forum at Georgetown University's undergraduate campus addressing the issue of whether or not the LGBTQ community should have preference in college and higher education admissions. Both sides of the issue will be represented at the forum.

Participants in the forum will hear from the LGBTQ Resources Director, Bill McCoy, a Senior Director of Admissions, Jaime Briseno, and Director of the Institute for Diversity, Equality, and Affirmative Action, Marjorie Powell.

The purpose of the forum is to understand the campus climate at Georgetown and perceptions of the LGBTQ community after two hate crimes occurred on campus against this segment of the student population.

The Supreme Court Refuses to Weigh National Security against Liberty

2007-10-17T12:16:00.000-05:00

Last week the Supreme Court refused to grant certiorari to the case of Khaled el-Masri, who asserts the United States government tortured him while in Afghanistan. He claims that he was detained in 2003 while in Macedonia and later transported to Afghanistan to be tortured. His case would have presented two issues to the Supreme Court. If Mr. Masri had been taken to Afghanistan to be tortured, his case would affirm the United States' use of extraordinary rendition. Several international conventions prohibit the use of extraordinary rendition, or the movement of a person from one state to another, typically one that permits the use of torture. Among these is the United Nations Convention against Torture, which the United States ratified in 1994.

The second issue for the court would have been the need to balance national security ("State secrets privilege") and Mr. Masri's right to bring his case before the federal judiciary. As the Supreme Court declined to hear Mr. Masri's case, they affirmed the supremacy of national security in this particular case. The concern for organizations such as the American Civil Liberties Union, as the New York Times article reports, is the pervasive effect that the decision not to hear the case may have.

Strict Scrutiny for LGBTQ?

2007-10-16T15:57:00.000-05:00

Due to a new study that is currently being conducted by DePaul University in Chicago, LGBTQ may get their day in court as a class of people protected under strict scrutiny. According the NY Times article, the study may show that homosexuality is an immutable characteristic. The article reads:

"The Cabreras hope the findings will help silence critics who say homosexuality is an immoral choice.

If fresh evidence is found suggesting genes are involved, perhaps homosexuality will be viewed as no different than other genetic traits like height and hair color, said Julio, a student at DePaul University in Chicago.

Adds his brother, ''I think it would help a lot of folks understand us better.''

The federally funded study, led by Chicago-area researchers, will rely on blood or saliva samples to help scientists search for genetic clues to the origins of homosexuality. Parents and straight brothers also are being recruited.

While initial results aren't expected until next year -- and won't provide a final answer -- skeptics are already attacking the methods and disputing the presumed results.

Previous studies have shown that sexual orientation tends to cluster in families, though that doesn't prove genetics is involved. Extended families may share similar child-rearing practices, religion and other beliefs that could also influence sexual orientation.

Research involving identical twins, often used to study genetics since they share the same DNA, has had mixed results.

One widely cited study in the 1990s found that if one member of a pair of identical twins was gay, the other had a 52 percent chance of being gay. In contrast, the result for pairs of non-twin brothers, was 9 percent. A 2000 study of Australian identical twins found a much lower chance.

Dr. Alan Sanders of Evanston Northwestern Healthcare Research Institute, the lead researcher of the new study, said he suspects there isn't one so-called ''gay gene.''

It is more likely there are several genes that interact with nongenetic factors, including psychological and social influences, to determine sexual orientation, said Sanders, a psychiatrist.

Still, he said, ''If there's one gene that makes a sizable contribution, we have a pretty good chance'' of finding it.

Many gays fear that if gay genes are identified, it could result in discrimination, prenatal testing and even abortions to eliminate homosexuals, said Joel Ginsberg of the Gay and Lesbian Medical Association.

However, he added, ''If we confirm that sexual orientation is an immutable characteristic, we are much more likely to get the courts to rule against discrimination.'''

Many of the predominant reasons given for not striking down laws regarding prohibition of same-sex marriage for example rely upon the fact that the LGBTQ segment of our population are not protected under strict scrutiny which requires that the law be "narrowly tailored" and have a "compelling interest." Right now, at best, LGBTQ are protected under a degree of scrutiny called "rational basis." All this analysis requires for a law to pass constitutional muster is that it be reasonably related to an important governmental objective. In the case of same-sex marriage, this "important governmental objective" has been said to be a concern for the proper environment in which to rear children (with a mother and father).

Update on RIAA Ruling

2007-10-15T22:11:00.000-05:00

Apparently, $222,000 in fines is "constitutionally excessive." According to the lawyer representing the woman fined for illegally sharing copyrighted songs, the sum of money is just too much to ask for. Check out the article here.

Some of the highlights are found below:

"The Minnesota woman a federal jury dinged $220,000 for pirating 24 copyrighted songs asked the trial judge on Monday to set aside the verdict on the grounds the judgment is unconstitutionally excessive.

It's a novel theory that, if successful, could undermine the Recording Industry Association of America's litigation machine that has sued thousands of alleged pirates.

The petition (.pdf) to U.S. District Judge Michael Davis, among other things, challenges the constitutionality of the 1976 Copyright Act, the law under which the RIAA sued Jammie Thomas of Minnesota, as well as over 20,000 other defendants. The $750 to $150,000 fines the act authorizes for each download is unconstitutionally excessive and against U.S. Supreme Court precedent, wrote Brian Toder, Thomas' attorney.

The RIAA said the argument is "baseless." In pretrial court documents in a New York federal copyright case against a Brooklyn woman, the RIAA acknowledged that such an argument might kill its zero-tolerance suing machine by making "it economically unsound for any copyright owner to seek to protect its copyright interests.'"

Clarence Thomas on Race

2007-10-09T20:16:00.001-05:00

Much has been made of Justice Thomas' recent release of his autobiography "My Grandfather's Son." Critics and liberals alike of the Justice criticize him for selling out to the Republican Party and also being a hypocrite--striking down many of the policies which helped him get to the very seat that he sits in. He responds to these criticisms in this short segment from 60 Minutes after the release of his autobiography.

File Sharing Ruling Shows Sharing Isn't Always Caring

2007-10-09T16:51:00.000-05:00

An NY Times article reports that a federal district court in Minnesota has fined a woman over $200,000 for sharing files on a music downloading program called Kazaa.

The article reads:

"In a crucial legal victory for record labels and other copyright owners, a federal jury yesterday found a Minnesota woman liable for copyright infringement for sharing music online and imposed a penalty of $222,000 in damages. The verdict against Jammie Thomas of Brainerd, Minn., brought an end to the first jury trial in the music industry’s protracted effort to rein in piracy with lawsuits against individual computer users. Since 2003, record labels have brought legal action against about 30,000 people, accusing them of trafficking in copyrighted songs.

Many of the people sued in such cases settle out of court for, on average, about $4,000, according to the industry’s trade association. Ms. Thomas chose to face trial instead, saying that she did not share files on the Kazaa network as the labels contended. She and her lawyer declined to comment after leaving the courthouse.

The jury verdict, which called for $9,250 in damages for each of the 24 songs involved in the trial, came after brief deliberations."

The ruling by the federal district court appears to reaffirm jurisprudence laid out in the USSC decision in Metro-Goldwyn-Mayer v. Glotsker, Ltd. (2005). There the Court reasoned that:

"When a widely shared service or product is used to commit infringement, it may be impossible to enforce rights in the protected work effectively against all direct infringers, the only practical alternative being to go against the distributor of the copying device for secondary liability on a theory of contributory or vicarious infringement."

New Surveillance Bill Still Presents Privacy Issues

2007-10-07T12:29:00.000-05:00

The fight to strike a balance between security and liberty continues this week as the Democratic Congress introduces a new surveillance bill that will give a secret court the power to issue general warrants for the purpose of investigating foreign targets. The bill is in response to the Protect America Act, which permitted investigations without a warrant. Unfortunately, the bill still draws question as to whether the security measures are a direct violation of the 4th amendment, specifically the prohibition of general warrants. However, Congress simply views the at as an improvement upon the current status of foreign surveillance measures.

Read more about the issue in the Washington Post article "Democrats to Offer New Surveillance Rules."

Congress Investigates CIA Toruture Policy by Seizure of Justice Department Documents

2007-10-06T21:46:00.000-05:00

Congress seized Justice Department documents in order to discover whether the President has authorized torture techniques banned by the Detainee Treatment Act of 2005. Since memorandums exposed by the New York Times first alerted Congress to this issue, the Democratically-controlled legislature has pressured the Justice Department to more readily disclose documents. The situation begs the question as to whether the executive branch has taken the opportunity to disrupt the balance of power with the unique situation the War on Terror has presented to the government.

For more information about the issue, the New York Times article can be found here.

On the Docket to See Case Dealing with Scope of Presidential Power

2007-10-04T22:30:00.001-05:00

On Wednesday, October 10th On the Docket will be taking Georgetown undergraduates down to see Medellin v. Texas. Details of the case are as follows:

In the Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.), I.C.J. No. 128 (judgment of Mar. 31, 2004), the International Court of Justice determined that 51 named Mexican nationals, including petitioner, were entitled to receive review and reconsideration of their convictions and sentences through the judicial process in the United States. On February 28, 2005, President George W. Bush determined that the United States would comply with its international obligation to give effect to the judgment by giving those 51 individuals review and reconsideration in the state courts. However, the Texas Court of Criminal Appeals held that the President’s determination exceeded his powers, and it refused to give effect to the Avena judgment or the President’s determination. This case presents the following questions:

1. Did the President of the United States act within his constitutional and statutory foreign affairs authority when he determined that the states must comply with the United States’ treaty obligation to give effect to the Avena judgment in the cases of the 51 Mexican nationals named in the judgment?

2. Are state courts bound by the Constitution to honor the undisputed international obligation of the United States, under treaties duly ratified by the President with the advice and consent of the Senate, to give effect to the Avena judgment in the cases that the judgment addressed?

We will meet at the GUTS bus stop in front of Leo's at 6am and be back on campus by 12 noon. Breakfast will be provided for those who come to the case. Sign up now by emailing onthedocket@georgetown.edu!

Some Upcoming Cases of Note

2007-10-02T17:29:00.000-05:00

The media have been very talkative lately about a 1) death penalty case 2) voter ID and 3) several cases dealing with detainees in the upcoming term. The NY Times' Linda Greenhouse predicts that that this upcoming term will be marked by severe disagreement among the justices and lots of dissent.

Take a look at what Greenhouse has to say here.

Circuit Court Ruling Affirms FAIR Decision

2007-09-23T16:55:00.001-05:00

A valiant effort by Yale Law School to challenge the Solomon Amendment once again fails in the federal courts. The 2nd Circuit of the Court of Appeals affirmed the jurisprudence laid out in the Rumsfeld v. FAIR decision handed down by the USSC in 2006. Circuit Judge Pooler wrote the opinion for the case which can be found here.

The court rejected the law school's argument saying that its academic freedom was violated by a government policy which would rescind federal funding of the law school if it did not give military recruiters the same access as other job recruiters.

Read more about the case here.

Government Collection of Traveler Data a Violation of the 4th Amendment?

2007-09-22T12:21:00.000-05:00

An article published in the Washington Post today reveals that the Department of Homeland Security has been collecting more data on travelers than previously thought. Through the use of something called the Automated Targeting System, the data on travelers has been collected since the mid 1990s to "assess the security threat posed by all passengers entering the U.S."

However, recent dossiers obtained from the Department of Homeland Security's ATS suggest that the information gathered goes above and beyond what is required to check for a "security risk" as the government has data on "the travel habits of millions of Americans who fly, drive or take cruises abroad, retaining data on the persons with whom they travel or plan to stay, the personal items they carry during their journeys, and even the books that travelers have carried."

Apparently, those critical of the system say that information could be used to make correlations and create relationships that may not actually be valid. The Washington Post reports:

"Edward Hasbrouck, a civil liberties activist who was a travel agent for more than 15 years, said that his file contained coding that reflected his plan to fly with another individual. In fact, Hasbrouck wound up not flying with that person, but the record, which can be linked to the other passenger's name, remained in the system. "The Automated Targeting System," Hasbrouck alleged, "is the largest system of government dossiers of individual Americans' personal activities that the government has ever created."

He said that travel records are among the most potentially invasive of records because they can suggest links: They show who a traveler sat next to, where they stayed, when they left. "It's that lifetime log of everywhere you go that can be correlated with other people's movements that's most dangerous," he said. "If you sat next to someone once, that's a coincidence. If you sat next to them twice, that's a relationship.'"

If the ATS does ever reach a court dispute over whether or not it violates the Privacy Act of 1974, which prohibits, among other things "gathering of data related to Americans' exercise of their First Amendment rights, such as their choice of reading material or persons with whom to associate," the question could ultimately come down to whether these searches and seizures are reasonable under the 4th Amendment's prohibition of unreasonable searches and seizures.

New Jersey Supreme Court Punts Questions about Beginning of Life

2007-09-22T11:51:00.000-05:00

On September 12th, New Jersey's high court unanimously ruled that a "doctor had 'no legal duty' to tell her that her six-to-eight-week-old embryo was “a complete, separate, unique and irreplaceable human being.'"

According to the NY Times article, the case has some bizarre beginnings as a malpractice suit. They report:

"The decision handed down today reversed a unanimous ruling by a three-judge appeals panel. The case began in 1998, when Rosa Acuna of Bound Brook, a mother of two, sued Sheldon C. Turkish, her gynecologist in Perth Amboy, over an incomplete abortion, and charged that he had not given her sufficient information before she allowed him to perform the abortion.

Mrs. Acuna, now 40, said in court proceedings that when she was in the early stages of pregnancy in 1996, she had asked Dr. Turkish “if it was the baby in there” and that Dr. Turkish had replied, “Don’t be stupid, it’s only blood.”

According to court papers, Dr. Turkish denied having made such a statement, adding that he probably told her that a “seven-week pregnancy is not a living human being,” but rather that it “is just tissue at this time.”

Mrs. Acuna had an abortion, and several weeks later went to the hospital after experiencing bleeding. She said that only after a nurse told her that “the doctor had left parts of the baby inside” did she realize it “was a baby and not just blood” inside her.

In court papers she said that she would not have had the abortion if she had received proper answers to her questions, and that she went on to suffer post-traumatic stress because of the procedure."

Apparently, Ms. Acuna wants the decision appealed to the USSC, so it is a possibility that we could see it go to the court for the spring term next year. The NJ high court did not ultimately rule on when life begins instead saying that, "There is not even remotely a consensus among New Jersey’s medical community or citizenry that the plaintiff’s assertions are medical facts, as opposed to firmly held moral, philosophical and religious beliefs, to support the establishment of the duty she would impose on all physicians."

Five of the court's seven justices weighed in on the case with the two others recusing themselves. No explanation was given for their recusal.

USSC Could Overturn D.C. Gun Ban

2007-09-09T01:19:00.000-05:00

The U.S. Court of Appeals for DC recently ruled unconstitutional a D.C. law which banned the ownership of hand guns (with the exception of active and retired law enforcement officials). It joins only one other federal appeals court--one in New Orleans--to do so purely on the grounds that the law violates the Second Amendment's guarantee of the right to bear arms.

The USSC has ruled only once on the Second Amendment in 1939 on the case of U.S. v. Miller. They upheld a gun control by a vote of 8-1. According to FindLaw, in that particular case, "Arkansas bootlegger Jack Miller was indicted for violating the National Firearms Act of 1934 by carrying a sawed-off shotgun across state lines. Miller argued that the case against him should be dismissed because the Second Amendment protected his right to own and carry the weapon."

The Court also seemed to affirm the collective right of the people--not persons--to bear arms. The Court wrote:

"In the absence of any evidence tending to show that possession or use of a 'shotgun having a barrel of less than eighteen inches in length' at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense. Aymette v. State of Tennessee, 2 Humph., Tenn., 154, 158."

The people pushing for the case to go to the USSC are fielding some criticism for appealing the DC Circuit Court of Appeals decision. With a slightly more conservative court, owed most in part to the nominations of President Bush and a undeniable texualist sitting on the bench as well (Justice Scalia), the prospects for upholding D.C.'s gun ban do not look very promising.

Election of Judges & Sentencing Guidelines Also to Come before Court

2007-09-03T23:19:00.000-05:00

Election of judges:

"The Constitution of New York provides for the election of judges for its trial courts of general jurisdiction. New York’s Election Law authorizes the selection of nominees for judicial office by political parties, through conventions whose delegates are directly elected by party members. The question presented is whether this system is facially constitutional under the First and Fourteenth Amendments to the United States Constitution."

Sentencing Guidelines:

"Whether, when determining the “reasonableness” of a district court sentence under United States v. Booker, 543 U.S. 220 (2005), it is appropriate to require district courts to justify a sentence outside the range recommended by the United States Sentencing Guidelines with a finding of extraordinary circumstances."

Hawaiian "Superferry" Worry Environmentalists, Judges

2007-09-02T18:38:00.001-05:00

A ferry similar to the Staten Island Ferry in NY is creating quite a tussle for islanders. Environmentalists argue that the ferry poses a threat to protected marine life in the surrounding waters. Businesses argue that the fuss over the operation of the ferry is detrimental to Hawaii's economy and will deter future business owners from investing in island ventures.

Read more about the ferry disputes at starbulletin.com and follow the controversy. Here's an article to start.

Running for Office & Use of Guns to Come before High Court

2007-09-02T09:58:00.000-05:00

Two very interesting cases will come before the USSC when it starts its term in October:

The first deals with candidates running for political office posing the question:

"Does the First Amendment prohibit a State from allowing a person running for public office to disclose the name of the party he or she personally prefers on the ballot?"

The name of the case is Washington v. Washington Grange.

The second deals with categorizing the use of guns and poses the following question:

"Whether receiving a firearm in exchange for controlled substances constitutes use of the firearm during and in relation to a drug trafficking crime within the
meaning of 18 U.S.C. 924(c)(1)."

The name of the case is Watson v. US.

You can find more on these cases at this website. Take a look.

Judge Rules Ban on Metal Bats Constitutional

2007-08-29T11:40:00.000-05:00

The recent ruling of a MA judge has gotten opponents of the ban literally batty. The NY Times article that covered the decision reported:

"While the judge observed that there was disputed evidence over whether metal bats were more harmful than wooden bats, he said that the Council had acted rationally in assessing “that the risk is too great.”

“The judgment that high school baseball players’ safety is more important than higher batting averages and more offense is a classic legislative judgment that the City Council could constitutionally make,” he wrote."

However, opponents punt the legal argument and say in response:

"Critics say the law leaves a host of unanswered questions, including who will pay for the extra wooden bats a team is likely to go through in a season and how the ban will be enforced."

War on Terror Case Settled, Finally

2007-08-17T12:41:00.000-05:00

Jose Padilla, whom the government designated as an enemy combatant, was convicted of all charges brought against him, signaling a major victory for the U.S. government in the war on terror. The sentence was brought about after a long and length court battle over Padilla's constitutional rights and charges brought against him which took the case all the way to the USSC in 2004 in Rumsfeld v. Padilla.

Check out more on the story here.

Use of Sacred Land Case May Reach California Court Soon

2007-08-14T21:16:00.000-05:00

Two interests--one over oil and the other over the preservation of sacred land to a Native American tribe--are about to come into conflict in the courts. Check out the NY Times article here.

Obtaining Rights: Not an All or Nothing Game

2007-08-14T14:35:00.001-05:00

At the foot of the lamps located in the courtyards of the US Supreme Court are little metal replicas of turtles. Why? These turtles are supposed to represent the "slow but steady pace of justice." The rationale for these turtles is quite reminiscent of the saying that the arc of history is long, but it always bends toward justice. Indeed, it seems that it always does. While history may take some backwards steps every now and then, our countries history has seemed to move in a direction which gives those disadvantaged more rights.

"We the people," when the US Constitution was penned in 1789 constituted a much more different demographic than "We the people" today. Women and African Americans were not part of that demographic. Perhaps only white property owning men were the only ones that constituted the "people" back then.

Equal justice under law is something that is an ideal. Never is it ever a reality. It's an ideal that we as a country strive for and that takes time to accomplish and attain. Perhaps this is why those groups fighting for certain rights nowadays realize that the choice isn't really all or nothing. Baby steps are required. Incrementalism. And sometimes when change in favor of more rights takes place, this change can actually be counterproductive.

Recently The Washington Post ran an article commenting on this very phenomenon about the gay rights movement in Russia. There is a divide between those that believe that the gay rights movement is actually engendering more homophobia and creating an argument against giving gay men and lesbians more rights. While it seems that the backlash against the gay rights movement in Russia would have happened anyway, the degree to which the backlash is occurring may be different had the rights movement taken a more back seat approach and therefore encountered less opposition.

And while the opposition that the gay rights movement is facing in Russia may not necessarily apply to the gay rights movement here in the US, it is certainly interesting to consider that not too long ago, opposition to the same-sex marriage ruling in MA sparked a similar "backlash" against the gay rights movement.

US Supreme Court Law Clerks: Part II

2007-08-13T09:54:00.000-05:00

How much power do law clerks really have? The question is quite interesting given the fact that the justices who sit on the Court do have the power to "say what the law is." How much say do law clerks having in creating the law of the land?

FindLaw's Edward Lazarus (who used to clerk for Justice Blackmun--shown above with his family) thinks that there is some evidence that law clerks do participate too much in the writing of opinions that are issued by the Court. In his article he writes that this level of involvement may also not be good. He says, "After all, clerks - typically in their twenties or at the latest, early thirties - do not have the experience of the Justices, or the judgment that comes with it. Nor, of course, were they nominated, vetted, and confirmed."

His whole article can be found at the link above or below in full:

Is Too Much of the Justices' Work Delegated to Their Law Clerks?

On a parallel track, a growing number of Court watchers have started to criticize the justices for the way they go about their work - and, in particular, the degree to which they have delegated the Court's work to a bureaucracy of young law clerks.

The debate on this subject heated up last year when Pulitzer-Prize-winning historian David Garrow accused Justice Harry Blackmun of being the most irresponsible justice ever because, according to Garrow's analysis of Blackmun's papers, Blackmun delegated a very substantial part of his opinion-writing to his clerks. (Full disclosure: I myself was once one of Blackmun's clerks.)

Meanwhile, two new political science books have thrown gas on the fire by arguing that Blackmun was by no means aberrational in his approach. Instead, they conclude -- based on extensive empirical study -- that almost all the justices relegate opinion drafting to their clerks. Moreover, these books claim, a fair number of the justices are fairly light editors of the drafts the clerks produce.

Critics ought to be remember, though, that even if this is true to some extent, the clerks are usually drafting according to the Justices' specific instructions, and subsequent to their deliberations with colleagues - and thus, they are still carrying out the Justices' visions. By and large, clerks are like apprentice architects filling in the boss's blueprint.

Still, it was not always thus. Decades ago, Justice Louis Brandeis famously remarked that the justices earned their high reputation in significant part because they were the only officials in Washington who genuinely did basically all of their own work. Then, it seems, Justices were both architects and apprentices.

A number of prominent commentators have started pining for the days when Brandeis's observation was still accurate. Reviewing the two books on law clerks, Judge Richard Posner, perhaps the smartest judge in the country, argues that the growth of the clerk bureaucracy has done nothing to advance the quality of Supreme Court opinions or decision-making; in fact, he suggests, it's just the opposite, and quality has diminished as clerk involvement has grown. After all, clerks - typically in their twenties or at the latest, early thirties - do not have the experience of the Justices, or the judgment that comes with it. Nor, of course, were they nominated, vetted, and confirmed.

It's not as shocking as it might sound, then, that two other well-respected Court followers, Stuart Taylor and Ben Wittes, have gone so far as to propose that the whole institution of Supreme Court law clerks - the hotshot recent law grades for whom clerking is a ticket to the legal elite - be abolished. In their view, the justices of the current era have unforgivably abdicated their most important responsibility - namely, crafting the specifics of the arguments that support and justify the nation's most important legal decisions.

In reality, the whole system of law clerking is far too entrenched for Taylor's and Wittes's suggestion to gain much traction. And I doubt that such a wholesale approach would be a good idea anyway. Law clerks, when deployed as they ought to be, perform all kinds of salutary functions, including bringing energy and new ideas into an otherwise exceedingly insular institution.

But as is true of all Swiftian "modest proposals," the Taylor/Wittes idea of doing away with law clerks entirely does raise important questions about the Court's functioning. How engaged are the individual justices in the crafting of the particular language used in their opinions? And if they're not very engaged at all, how much sense does it make for the lower courts to closely parse their every word choice? Does the clerk bureaucracy allow justices to stay on the Court long after their prime has passed? Has the proliferation of law clerks improved the Court's work and, if not, why not? Are there ways the use of law clerks could be reformed, but not abolished?

Too Much Time on Their Baby Soft Hands

2007-08-09T13:21:00.000-05:00

Johnson & Johnson owners have sued the Red Cross over the use of a similar symbol. This is outrageous. Perhaps Judge Pearson (who sued a dry cleaning business for nearly 60 million dollars for loss of a pair of pants) and Johnson & Johnson have something in common? They would share much more in common than those two logos pictured up above.

Check out the article here.

US Supreme Court Law Clerks: Part I

2007-08-09T11:40:00.000-05:00

Is there declining diversity in the law clerk hires since the appointment of John Roberts and Samuel Alito?

Perhaps there is as Linda Greenhouse writes in a not-so-recent memo regarding the declining numbers of female law clerk hires by USSC justices.

Take a look at the article below:

Everyone knows that with the retirement of Justice Sandra Day O'Connor, the number of female Supreme Court justices fell by half. The talk of the court this summer, with the arrival of the new crop of law clerks, is that the number of female clerks has fallen even more sharply.

Just under 50 percent of new law school graduates in 2005 were women. Yet women account for only 7 of the 37 law clerkships for the new term, the first time the number has been in the single digits since 1994, when there were 4,000 fewer women among the country's new law school graduates than there are today.

Last year at this time, there were 14 female clerks, including one, Ann E. O'Connell, who was hired by William H. Rehnquist, the chief justice who died before the term began. His successor, Chief Justice John G. Roberts Jr., then hired Ms. O'Connell.

Justice Samuel A. Alito Jr., who joined the court in January, hired Hannah Smith, who had clerked for him on the appeals court where he had previously served. So by the end of the term, and counting Ms. O'Connell twice, there were 16 women among the 43 law clerks hired by last term's justices.

After years in which more than a third of the clerks were women, the sudden drop was a hot topic this summer on various law-related blogs. Word of the justices' individual hiring decisions spread quickly among those for whom the comings and goings of law clerks are more riveting than any offering on reality television.

Who are these young lawyers who are the subject of such interest? They do not, contrary to myth -- propagated in part by law clerks themselves -- run the court. They do play a significant role in screening new cases, though, and they help their justices in preparing for argument and in drafting opinions.

While their pay is a modest $63,335 for their year of service, a Supreme Court clerkship is money in the bank: the clerks are considered such a catch that law firms are currently paying each one they hire a signing bonus of $200,000.

In interviews, two of the justices, David H. Souter and Stephen G. Breyer, suggested that the sharp drop in women among the clerkship ranks reflected a random variation in the applicant pool.

But outside the court, those who care about what goes on inside are thirsting for more than statistical randomness as an explanation.

A post on one popular legal Web site, the Volokh Conspiracy, asked, ''Why so few women Supreme Court clerks?'' and drew 135 comments during a single week in July. The answers included the relative scarcity of female students among the top editors of the leading law schools' law reviews -- an important preclerkship credential -- and the absence of women among the ''feeder judges,'' the dozen or so federal appeals court judges who, year in and year out, offer a reliable pipeline to the Supreme Court for their own favored law clerks.

Some speculated that Justice Antonin Scalia, who hired only two women among 28 law clerks during the last seven years and who will have none this year, could not find enough conservative women to meet his test of ideological purity. (Justice Clarence Thomas will also have no female clerks this year, but over the preceding six years hired 11.)

In a brief telephone interview, Justice O'Connor said she was ''surprised'' by the development, but declined to speculate on the cause.

Justice Ruth Bader Ginsburg expressed no such surprise. In a conversation the other day, she knew the numbers off the top of her head, and in fact had noted them in a speech this month in Montreal to the annual meeting of the American Sociological Association, during which she also observed with obvious regret that ''I have been all alone in my corner on the bench'' since Justice O'Connor's retirement in January.

Justice Ginsburg, who will have two women among her four clerks, declined during the conversation to comment further on the clerkship numbers. Why not ask a justice who has not hired any women for the coming term, she suggested.

One who is in that position, Justice Souter, said he was disappointed to find himself without any female clerks. He explained that he had hired the top four applicants, who turned out to be men.

In recent years, more than a third of Justice Souter's law clerks have been women; since women rarely make up as much as a third of the applicant pool, he said, they have been somewhat overrepresented among his hires.

''I've found that a mix is a wonderful thing,'' he said, speaking from his home in New Hampshire.

Unaware of the overall drop in numbers, Justice Souter said he assumed it reflected no more than a random variation among this year's applicants.

That was also the assessment offered by Justice Breyer, who nonetheless has hired his usual total of two women for his four law clerk positions.

In the last seven years, Justice Breyer has hired more women than any other member of the court; more than half his law clerks, 15 of 28, have been women, a result, he said in an interview from his chambers in Boston, not of any conscious effort but of choosing the best available candidates.

With the number of women in clerkships high by historical standards until now, attention has been focused on a lack of ethnic and racial diversity among the clerks. There are no reliable figures, but the clerkship cadre remains overwhelmingly white.

It was not until the 1940's that any justice hired either a female or black law clerk.

Justice William O. Douglas hired the first female clerk, Lucille Lomen, in 1944, and it was 22 years before Justice Hugo L. Black hired the second, Margaret Corcoran. The first black clerk, William T. Coleman Jr., who is still practicing law here, was hired by Justice Felix Frankfurter in 1948.

Justice Frankfurter was not, however, ready to hire a woman when the dean of Harvard Law School strongly recommended a former star student in 1960. He turned down Ruth Bader Ginsburg.

Going to the Source of the Flood

2007-08-07T13:24:00.000-05:00

A recent ruling by a federal appeals court has left Katrina victims essentially homeless nearly two years after a hurricane ravaged the Gulf Coast.

The ruling overturns a decision by a district court judge which said that insurance companies were responsible for covering damages that ensued from the flooding that occurred after the levees gave way in 2005. The insurance policy language, the district court judge ruled, was ambiguous in that it did not distinguish between naturally occuring floods and those resulting from faulty levees or human error.

However, the federal appeals court declared that although ambiguous the policy is very clear about excluding homeowners from protection against any sort of flooding. Obviously there is disagreement among the judges about how to interpret this insurance policy.

But apparently the policy and the text of the policy is quite clear. The text of the appeals court decision by Judge King reads:

"Each plaintiff in this case is a policyholder with homeowners, renters, or commercial-property insurance whose property was damaged during the New Orleans flooding. Despite exclusions in their policies providing that damage caused by “flood” is not covered, the plaintiffs seek recovery of their losses from their insurers. Their primary contention is that the massive inundation of water into the city was the result of the negligent design, construction, and maintenance of the levees and that the policies’ flood exclusions in this context are ambiguous because they do not clearly exclude coverage for an inundation of water induced by negligence. The plaintiffs maintain that because their policies are ambiguous, we must construe them in their favor to effect coverage for their losses."

Therefore the jurisprudence is sound. But justice does not seem to have been served. The people at fault should be the ones paying for the damage to these houses--not those victims of the hurricane who are now left with more worries than fears allayed nearly two years after they lost their homes and way of life.

For more, read the NY Times article here.

Communication Between the Branches Sometimes Lacking

2007-08-07T10:06:00.000-05:00

The recent ruling of a VA judge striking down driving fees as unconstitutional since they only apply to VA residents and not all who use the VA roads is illustrative of the sometimes lack of communication between the legislative and judicial branches of government--even at the state level.

The law which was created in order to finance a transportation bill that the VA legislature had passed violated the equal protection clause of the US Constitution since it only applied to state residents and not all who used VA roads. The ruling is a clear indication of what the judge believes to be constitutional: a law which applies to everyone using VA roads--not only VA residents. It is a simple change in language which could have been quickly remedied while drawing up the bill instead of dragging the bill through a hefty legal process, wasting time and resources of government that could better be spent elsewhere.

Going Beyond Unreasonable Searches & Seizures

2007-08-06T16:27:00.001-05:00

The new law that Bush signed has violations of the 4th Amendment written all over it. According to an article by the NY Times, the new law both expands the definition of "electronic surveillance" and clarified the FISA act of 1978 to allow for warrantless searches.

The article reads:

“This more or less legalizes the N.S.A. program,” said Kate Martin, director of the Center for National Security Studies in Washington, who has studied the new legislation.

Previously, the government needed search warrants approved by a special intelligence court to eavesdrop on telephone conversations, e-mail messages and other electronic communications between individuals inside the United States and people overseas, if the government conducted the surveillance inside the United States.

By changing the legal definition of what is considered “electronic surveillance,” the new law allows the government to eavesdrop on those conversations without warrants — latching on to those giant switches — as long as the target of the government’s surveillance is “reasonably believed” to be overseas."

Bush's decision goes against the general prevailing jurisprudence on this issue in the lower courts which have reviewed this matter. Recall that nearly a year ago on August 16, 2006 a Detroit district judge, Anna Diggs Taylor, ruled that the NSA terrorist surveillance program violated the 4th Amendment. The 6th Circuit Court of Appeals failed to rule on the issue throwing it out on the justiciability doctrine of standing and thus refused to rule on the actual merits of the case.

Will Immigration Become a National Issue in the Courts?

2007-08-06T16:15:00.000-05:00

The National Journal is calling attention to a District Court ruling in PA regarding an ordinance against illegal immigrants which may make its way up to the USSC. The PA District Court ruled that the ordinance which deals with housing and employment of illegal immigrants falls outside the jurisdiction of the municipal government of the states. A 1986 act called the Immigration Reform and Control Act stipulates that only the federal government--not the states--are allowed to regulate these matters.

Media Inflating Roberts' Medical Episode

2007-08-01T12:11:00.001-05:00

Yesterday, CJ Roberts was treated at a hospital in Maine for his second seizure in 14 years. The first seizure apparently occurred while he was going through his confirmation hearings for the DC Circuit Court of Appeals. Some have pointed to stress as a triggering factor for Roberts' first seizure. This time, Roberts was on vacation when the second seizure occurred.

Because of Roberts' two seizures, medical doctors now consider Roberts to have epilepsy. Among some of the options for treatment are medication (which apparently can have some unpleasant side effects) or doing nothing and waiting. Some states prohibit sufferers of epilepsy from driving until they can prove that their condition is under control.

Admittedly the Justice is not in the best of health. However, it appears that the media and in specific, Linda Greenhouse of the NY Times in an article, takes a rather extreme view of what has happened. A man in his early 50s has visited the hospital for a condition which medicine can treat. There's nothing more and nothing less. Greehouse seems to imply that the legal world will now face great changes using almost hyperbolic language. She says:

"In October, when he returns to his seat at the center of the Supreme Court bench, will colleagues and courtroom spectators see the same golden youth whose trajectory was unmarked by setback or sorrow? Or will they see someone suddenly vulnerable, with a medical condition that, while treatable and shared by millions, can still inspire fear?

Or to dig deeper, might this encounter with illness even change the way John Roberts sees himself, his job or the world?"

She continues:

"Nearly two years ago, after Chief Justice Roberts took the oath of office, he was accompanied down the steps of the court by Justice John Paul Stevens, 35 years his senior. Justice Stevens stumbled slightly, and the waiting crowd held its breath as the new young justice helped him regain his balance. Justice Stevens is still playing golf and tennis. It is John Roberts for whom the country now holds its breath."

Greenhouse draws a contrast between Stevens who is the oldest justice sitting on the bench and Roberts, the youngest justice currently presiding over the Court. It is highly unlikely the majority of the country is even giving a second thought to Roberts and his more than likely 30 year stint to come on the Court.

Greenhouse and the rest of the media need to calm down, relax, and instead of holding their breath for an obviously in-good-health justice, take a deep breath. Perhaps even take a chill pill.

No Constitutional Showdown Over Iraq in Near Future

2007-07-31T11:18:00.000-05:00

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.

Response to America's View of an Increasingly Conservative USSC

2007-07-28T18:18:00.000-05:00

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.

Facebook Facing Lawsuit

2007-07-27T16:28:00.000-05:00

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?

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

2007-07-15T11:37:00.000-05:00

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.

Race in Schools: A Move Beyond Integration to Diversity

2007-07-04T13:26:00.000-05:00

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.

Student Free Speech Decision: Yields a Confusing Test

2007-06-26T13:43:00.000-05:00

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

2007-06-24T14:31:00.000-05:00

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

2007-06-24T13:48:00.000-05:00

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

2007-06-23T11:55:00.000-05:00

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

2007-06-23T00:17:00.000-05:00

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

2007-06-12T21:56:00.000-05:00

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

2007-06-11T11:20:00.000-05:00

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

2007-06-11T09:12:00.000-05:00

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"

2007-06-08T14:06:00.000-05:00

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?

2007-06-07T16:21:00.000-05:00

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

2007-06-06T17:42:00.000-05:00

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

2007-06-05T16:54:00.000-05:00

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

2007-06-05T11:52:00.000-05:00

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

2007-06-05T11:17:00.001-05:00

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

2007-06-05T09:45:00.000-05:00

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?

2007-06-04T12:04:00.000-05:00

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

2007-06-03T15:26:00.000-05:00

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

2007-06-03T12:27:00.000-05:00

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...

2007-06-02T14:14:00.000-05:00

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

2007-06-02T13:25:00.000-05:00

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

2007-06-01T13:32:00.000-05:00

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

2007-06-01T11:25:00.000-05:00

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

2007-06-01T10:14:00.000-05:00

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.

Bush Warms to Policies Addressing Climate Change

2007-05-31T18:20:00.000-05:00

Signaling a change from his position of refusing to sign onto the Kyoto Protocol, Bush called upon 15 other nations today to "reduc[e] greenhouse gas emissions to 50 percent below 1990 levels by 2050."

His announcement to work with other countries on reducing global emissions of greenhouse gases comes nearly two months after the USSC's decision in Massachusetts v. EPA (2006) which allowed Massachusetts (and other states) the power to force the EPA to regulate and curb the emissions of greenhouse gases.

While no real conclusions can be drawn about the cause of the sea change in Bush administration policy toward climate change, one has to wonder whether or not the USSC decision had any influence upon Bush's decision. While the judiciary may be the "least dangerous branch of government," it certainly is not the least powerful of the three.

Affirmative Action & Freedom of Expression

2007-05-31T15:43:00.000-05:00

Two blockbuster cases await decision as the onset of June approaches and the 2006 term of the Supreme Court comes to a close.

The first case deals with the ability of public schools in the state of Washington to use race as a factor for assigning seats in high school assignments. Certain public schools in the city of Seattle are oversubscribed by public high school students and as such high schools use certain criteria to determine which students to accept. Race is the last factor among three others considered in the selection process.

Justices took great pains during oral argument, however, to make sure that they communicated the fact that the "integration tie breaker" used by the Seattle school districts is different from the affirmative action plan seen in the Grutter University of Michigan Law School case from 2003.

Because of this distancing from previous precedent upholding the use of race, On the Docket believes that USSC will strike down the integration tie breaker.

The second case deals with freedom of expression. Namely, the phrase, "Bong Hits 4 Jesus," which was displayed during a public school parade in Anchorage, Alaska. During oral argument justices were quite concerned with the ability of school officials to ban this type of free speech (one which did not harm others) as too limiting a regulation in violation of the First Amendment. The justices seemed to imply that if they ruled in favor of the school, school administrators would then be free to regulate views of school teachers, books, and other learning materials that school adminstrators may perhaps not agree with.

It is therefore our prediction that the Justices will rule in favor of the students.

Media Buzz Around Ginsburg's Oral Dissent in Ledbetter

2007-05-31T14:47:00.000-05:00

The Washington Post and The New York Times have seized upon what they believe to be Ginsburg standing up for the an increasingly unsatisfied liberal contingent of Justices sitting on the Supreme Court in Ledbetter. But it is questionable as to whether or not the court--since the confirmation of more conservative Bush appointees--has shifted from one "that once proudly stood up for the disadvantaged...[to] increasingly protective of the powerful."

According to an article by Linda Greenhouse of The New York Times, Ginsburg has read aloud her dissents in the 2006-2007 term more than any other term in her 15 years sitting on the court. It is a technique that has rarely been employed by justices past and present on the Court. Ginsburg has, herself, rarely used the technique.

The Washington Post's Robert Barnes, however, hints in his article that Ginsburg's recent desire to speak up may due more in part to her commitment to women's rights issues rather than in response to the shifting ideology of the Court. Her dissent in Ledbetter was related to pay inequity between men and women in the workplace. Her previous dissent this term was related to the Court's decision to uphold a law banning partial birth abortions.

On the Docket believes it too soon to tell whether Ginsburg is speaking for a disatisfied liberal cohort of justices in response to an increasingly conservative Court ideology