Will Immigration Become a National Issue in the Courts?

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

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

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

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

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?