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February 28, 2006

Vermont’s campaign finance law in trouble? ::
legal — tagged , , , and
2:52 pm

I should have been keeping up more with Randall v. Sorrell, the campaign finance case from Vermont that was argued before the Supreme Court today. But I haven’t. Lucky for me, SCOTUS Blog has a good summary of today’s oral argument:

The common concern among the members of the Court who spoke up appeared to be that Vermont had set its contribution levels so low that it might threaten to cut off any chance of a contender to unseat an incumbent, or that it might threaten to make a race in a competitive district a slam-dunk for the incumbent. Justice Stephen G. Breyer put the question bluntly, seeming to reflect the mood of the Court as a whole: “At what point does a limit become so low that you cuff off the possibility of a challenge?”

Given Justice Breyer’s past tendency to let campaign finance laws stand, to my mind it was significant that he asked such a pointed question. If he winds up deciding to strike down Vermont’s contributions law, then I’ll venture to speculate that the rest of the Court will follow suit. The main question for me right now will be whether he will write the opinion.

February 1, 2006

The truth about Alito? ::
legal — tagged , , , and
4:35 pm

Fafblog’s take on the Alito confirmation is, well, unique.

[N]o longer a creature of flesh and bone, Alito has been reborn as lifelong Justice of the Supreme Court, a pure and ethereal conduit of the Constitution. Even as we speak he is being anointed by his fellow jurisprudents in the Supreme Court Building, where he will bodily ascend into the empyreal Tenth Sphere of the Law to commune with the wraithlike, undead spirits of the Framers to perfectly comprehend the true meaning of the Constitution before passing through the eye of a black hole to become the Star Child.

Oh, if only we learned about this in Con Law.

What’s protected? Cory Doctorow and Star Force ::
legal — tagged , and
2:56 pm

It could be that others got to this before I did. But a couple of days ago, Cory Doctorow posted to Boing Boing about a rather nasty letter he received from the people over at Star Force, threatening to sue him over a previous post in which he describes (rather accurately) one of Star Force’s product’s “anti-copying malware.” In his reply to Star Force, Cory noted that he had forwarded the message to the people over at Chilling Effects.

Well, today in my news reader I found this excellent annotated version of Star Force’s letter, complete with links to explanations about what constitutes a defamation suit, what sorts of statements are protected by the first amendment, what defenses are available to someone charged with defamation, and the definition of a SLAPP suit. It’s definitely a worthwhile read—go check it out.

January 31, 2006

Roe: when developments happen, they will happen quickly ::
legal — tagged , , , and
8:56 pm

For all you Due Process/abortion law people out there, here comes an interesting piece over at SCOTUSBlog about the a possible change in abortion law in the near future. The issue involves the 2003 Partial Birth Abortion Act, which the Ninth Circuit enjoined the federal government from enforcing. Although under current law it is no surprise the law was struck down. But what’s interesting (and also scary, if you support the protections of Roe) is that things could turn out substantially differently if the case winds up before the Supreme Court.

With a new Justice, Samuel A. Alito, Jr., on the Court, a majority might be assembled to reexamine that core question, and thus to revisit the 2000 decision in Stenberg v. Carhart striking down a state-level “partial-birth” ban. That was decided on a 5-4 vote, with Alito’s predecessor, Justice Sandra Day O’Connor, in the majority.

I make no predictions on who will vote how on such a case. In fact, I won’t even wager to guess whether the Court will decide to hear the case. But in the event that they do decide to hear the case, we could very well be dealing with a different legal landscape when it comes to Abortion law, not to mention the right to privacy generally.

January 19, 2006

New Republic comes out against Alito ::
legal — tagged , , , and
5:12 pm

In this week’s editorial (which requires a free registration—sorry), the New Republic came out against Alito’s confirmation. Here’s a conclusory passage:

Although the decision is not easy, our concerns about Alito’s lack of commitment to bipartisan judicial restraint compels us to urge Senate Democrats to vote against his nomination. We recognize that this strategy has risks: If the Democrats regain the White House and Republicans retain the Senate, well-qualified Democratic nominees may face an uphill battle when senators feel free to oppose them on the grounds of judicial philosophy alone. But the confirmation process has already become so polarized that we suspect Republicans will oppose Democratic nominees no matter what Democrats do now.

TNR, it should be noted, gave a cautious nod to Chief Justice Robert’s nomination last year. Also, the editors’ reasons for opposition do not simply echo the cries of the special interest groups. Rather, they argue that Alito should be opposed because his philosophy could threaten the political center of this country. Really, it’s one of the more thoughtful opposition pieces I’ve read in some time, and worth checking out even if you don’t agree with it.

January 17, 2006

Hypocrisy of the day? ::
legal — tagged , , , and
6:33 pm

Legal Fiction nailed the same point of hypocrisy I noted after reading Scalia’s dissent in Gonzales v. Oregon, handed down today:

From an early time in our national history, the Federal Government has used its enumerated powers, such as its power to regulate interstate commerce, for the purpose of protecting public morality—for example, by banning the interstate shipment of lottery tickets, or the interstate transport of women for immoral purposes. Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible.

Scalia, of course, had no problem striking down provisions of the Violence Against Women Act that he, along with four other members of the Court, found to be outside Congress’ commerce clause power. He doesn’t explain why, in his view, Congress can exercise a certain moral authority in this case, but could not in that previous one. Such a distinction without explanation suggests that his decision was based on the nature of the law rather than the constitutional principle at stake. Ah, well.

Update: What’s particularly interesting about the Scalia dissent is that we’re not even dealing with a federal law passed by Congress. Rather, the “law” in question is an interpretive rule established by the Justice Department while John Ashcroft was Attorney General. So here here we’re not even dealing with a law that was subject to the check of open democratic debate. For a “conservative” justice who suppsosedly believes in the power of states, shouldn’t such an administrative rule, which so substantially cuts back on state power, be viewed with even more skepticism than a law passed by Congress?

January 13, 2006

Justice Who? ::
legal — tagged , , , , and
1:55 pm

I’m back at school, but I’m trying to keep this place in mind as my life gets more busy over the coming weeks. With that in mind, I just wanted to stop a moment a say that, despite my history of interest in all things Supreme Court, I have been quite uninterested in watching the Alito hearings because, barring some big surprise (which is becoming less of a possibility as time goes on), he will likely be confirmed. But with that, I also wanted to note the interesting discussions that are going on in the margins of the confirmation hearings. Case in point, Jack Balkin has this to say in his post on Constitutional Catechism:

No, the reason why this particular catechism has developed is that it reflects the views of the current dominant national political coalition about what constitutional questions are off the table for revision. The cases I have just mentioned were not always beyond question in the past, even years after they were originally decided. They were, at one point, controversial. But by the 1964 Civil Rights Act, Brown had entered the pantheon of cases that had to be correct, and one of the interesting side effects of the Bork hearings in 1987 was that Griswold had also entered that list. And we can be quite sure now, as a result of the Alito hearings that the list also extends to Eisenstadt—which extends Griswold to the right of single persons—and Reynolds.

One of the recurring themes in my legal education is the limited power of the Supreme Court in setting broad laws. So, even if the Court did rule that segregation of public education violates the Equal Protection clause, the idea that the federal government should activly pursue a civil rights agenda did not gain legitimacy until Congress passed the Civil Rights Act of 1964. In that regard, the decisions of the Supreme Court always seem to be in question until Congress somehow endorses the Court’s decision—typically through legislative action. With that in mind, it’s pretty interesting to see how Congress has progressed in its acceptance of some rather progressive—not to mention controversial—Supreme Court decisions, even those handed down within my lifetime. With that in mind, it makes me happy to see that, although the law moves slowly, it hasn’t totally stopped moving forward.

August 28, 2005

Legal Fiction on Judge Roberts and Race ::
legal — tagged , , , , and
3:36 pm

[This is just one of a few posts I’ll be making as I try to catch up in the online world after taking a break for a week or so.]

Legal Fiction has a great series of posts dealing with is reservations about John Roberts’ race record here, here, here, and here. Although Roberts was arguing many of the more controversial positions while working for the Reagan and Bush Administrations, the language he used suggests he relished advocating the racially insensitive, sometimes borderline racist, positions of those administrations.

I still don’t think that this means that Judge Roberts should be dismissed out of hand. But I think the Senate has a responsibility to ask how Roberts’ views on these topics have evolved over the years.

August 16, 2005

Constitution as suicide pact ::
legal — tagged , , , and
3:35 pm

The old phrase “the Constitution is not a suicide pact” is one of those nebulous statements that can be used to further two opposite political and legal agendas. On the one side, those who favor a cavalier retraction of civil liberties in the face of growing security concerns cite the statement to further the argument that the Constitution should not be rigidly adhered to if it means that it makes America “insecure.” But those who have reservations about the cite the statement in arguing that the Constitution—and the rights it protects—are not intended to be abandoned, or otherwise sacrificed, in the face of heightened security concerns. Indeed, we should equate placing limits on constitutional protections to the taking of a life.

To further explain this dichotomy, I found this three year old Slate piece about the two lines of interpretation. The first interpretation came from a dissent written by Robert Jackson, in a First Amendment case dealing with a hate-filled, white supremacist speech that ended in violence and and Terminiello, the defendant, being charged with disorderly conduct. The second interpretation originated from a majority opinion writted by the much more liberal Arther Goldberg.

Those who make the former argument—that the Constitution was not intended to place United States citizens in danger, or threaten law and order, the Jackson dissent, in which he argued that

[t]here is danger that, if the court does not temper its doctrinaire [First Amendment] logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

But those who make the latter argument—that we should not run roughshod over the rights protected by the Constitution at the first sign of possible danger—cite Justice Goldberg, who in a later case

raised the suicide-pact point in recognizing that the Constitution indeed granted Congress “broad and far-reaching” powers to require military service. Still, he asserted, those powers were limited and did not allow the government to yank citizenship as a penalty for draft-dodging without due process.

Great reading!

Update: James also reminds me that he talked about the Constitution as suicide pact a few years back.

August 14, 2005

Unlikely Heroes ::
books, legal — tagged , , , and
3:44 pm

This weekend, I finally finished Unlikely Heroes, by Jack Bass, which chronicles the story of Four Federal Appeals Court judges in the Fifth Circuit, who took on the daunting task of implementing the Supreme Court’s second Brown v. Board of Education decision (Brown II), which required segregated school systems be dismantled “with all deliberate speed” and authorized lower court judges to implement desegregation orders using “equitable principles.”

Such a task was not easy. On top of receiving vague orders from the U.S. Supreme Court, southern federal judges faced an complex, entrenched political system that institutionalized racism and subverted the civil rights of an entire class of people. Additionally, recalcitrant local officials—not to mention other judges—deliberately dragged their feet in following the orders handed down by the federal courts. But the judges chronicled in Unlikely Heroes overcame that challenge, and operated in a manner that was true to history, true to the Constitution, and true to their own sense of what was right. As the Author, Jack Bass, talks of Judge John Minor Wisdom, one of the committed desegregationist judges on the Fifth Circuit during the Brown II era:

But rare is the judge who possesses the knowledge of history and philosophy, commands the intellect and imagination, feels the sene of justice and moral imperative, and displays the integrity and courage that all combine in a single case to transform law and make a permanent impact on the legal process. Fate smiled when a judge named Wisdom not only transformed the law of school desegration in U.S. v. Jefferson, but provided the historical and philosophical foundation that placed it in the context of a larger issue.

Keeping in mind that the desegregation requirements in Brown would have meant very little if it had been ignored by the southern states and in the southern courts, the fact that Judges Wisdom, Elbert Tuttle, John R. Brown and Richard Rives were all sitting on the Fifth Circuit at the same time was truly providential. And while I do not diminish the ongoing racial intolerance that plagues American society, the fact that we have progressed so much from the segregated world before Brown is in no small part the result of the work done by these judges.

Finally, to bring the importance of this book into modern times: in the next few weeks, the Senate will be gearing for the confirmation hearings for Judge Roberts. Although I do not want to play down the importance of his potential confirmation to issues surrounding civil rights and constitutional law, at the end of the day, the judges and the courts that will have the most immediate effect on those rights are those who must take the high level, many times vague directives of the Supreme Court and apply them to the very specific facts of the situation they face in a particular case. It is in that scenario that the true meaning of a Supreme Court decision is truly born out. And in order for the decision to truly mean something—especially in the realm civil rights for an historically opressed class of citizens—a lower court judge must stare down the inequities and the hatered of an entire society. Doing that takes true heroism.

So, in short: don’t sell short the importance of inferior courts. In many ways they are just as important—if not moreso—than the Supreme Court.

Check out Unlikely Heroes at Powell’s.

August 11, 2005

The Evolution of John Roberts ::
legal — tagged , , , and
1:17 pm

Ok, I know I need to stop with the John Roberts-related posting. But there’s just so much interesting stuff out there. The latest is this post on the evolution of John Roberts over at TPMCafe. A choice paragraph:

[The current] image of a judicial incrementalist, comfortable with Democrat-appointed judges, agonizing over each case he must rule on, praising liberal icon William Brennan, is sharply at odds with everything we know about the younger John Roberts. In the 1980s and early 1990s, Roberts evinced disdain for the constitutional right to privacy and signed briefs calling for the reversal of Roe v. Wade and the upholding of school prayer ceremonies. He argued that busing—a court-ordered remedy to equal protection violations—was itself unconstitutional. He criticized the availability of federal habeas corpus rights for state prisoners, supported legislation that would have stripped the Supreme Court of jurisdiction over certain issues, and opposed the 1982 expansion of the Voting Rights Act.

August 10, 2005

At least one conservate group doesn’t like Roberts ::
politics, legal — tagged , , , , and
3:35 pm

For those of you hoping for signs that Conservatives will begin splitting in their support of cofirming Judge Roberts, I’m sure this will come as good news. JURIST Paper Chase and TalkLeft both report that a conservative advocacy group has pulled its support for John Roberts because he worked to protect the rights of gays and lesbians to be free of discrimination in the State of Colorado. From the Paper Chase article:

Public Advocate of the United States, a right-wing group based in Virginia, announced Wednesday that they would become the first conservative group to oppose the nomination of John Roberts to the US Supreme Court. The group is protesting his behind-the-scenes work on Romer v. Evans, a 1996 case where the Supreme Court overturned a Colorado constitutional provision as discriminatory towards homosexuals.

One of the main reasons I am not as up-in-arms as my liberal colleagues about the potential Roberts confirmation is that I’m not conviced that he will be an ideologue or a rubber stamp for the political agenda of extremist political groups. In fact, much of the evidence—such as his work on Romer—suggests exactly the opposite. I continue to believe that any personal views he may have about hot-button social issues, such as gay rights, is tempered by his commitment to the rights protected by the Constitution.

Now, regarding this new split: the next question will be whether other conservative groups will begin to follow the example of Public Advocate of the United States. Time will tell, I suppose.

Roberts and the Operation Rescue Brief ::
politics, legal — tagged , , , , and
3:17 pm

The Supreme Court Nomination Blog has a post on then-Principal Deputy Solicitor John Roberts’ brief in the case of Bray v. Alexandria Women’s Health Clinic. That’s the case that challenged Operation Rescue’s particular practice of protest at abortion clinics (called “rescues”). Abortion clinics filed suit in Federal Court under 42 U.S.C. 1985, seeking an order barring such protests.

Although the Supreme Court Nomination Blog maintains its position that it is difficult to deduce a Solicitor’s personal legal or political views from the briefs they write for the government, they also note that this case might be different:

More can be deduced, however, when the Government files an amicus brief in a case in which it has a less direct institutional interest at stake. The Solicitor General often stays out of such cases altogether and certainly does not feel compelled to participate. The decision to participate at all, thus, is somewhat informative. Moreover, because the Government has no clear institutional interest at stake, government officials have freer reign to choose the position that is most in line with their legal and/or political philosophies.

Interesting! We’re still in the land of speculation w/r/t Roberts’ views on abortion, but this is, I suppose, another data point worth noting.

Ending the Electoral College? ::
legal — tagged , and
10:10 am

Ruy Texeira has an interesting post on abolishing the Electoral College.

He cites a new study that shows that the College “does a lot of damage to democratic principles and warps political priorities.” Also, his core argument in favor of abolishing the electoral college is pretty thoughtful:

[a]bolishing the Electoral College would take a constitutional amendment, and there would be some resistance in the larger states. But the improved fairness would benefit everyone, and strengthen the principle of one person, one vote —- which should be a cornerstone of every great democracy.

I’m still mixed about ending the Electoral College, though I’m much less resistant to the notion of some sort of Electoral College reform than I once was. Maybe there’s some middle ground between our current system and one in which the President is elected by direct vote?

August 9, 2005

Senator Specter’s letter to Judge Roberts ::
legal — tagged , , , and
11:56 am

I’ve been thinking quite a bit about the concept of “judicial activism” over the past few weeks. Typically, it is perjoritive that conservative throw throw at so-called liberal judges and justices who make new, progressive law to fit the evolving legal needs and moral standards of American society. But there is a liberal flip-side to the “judicial activism” critique, which I want to spend some time talking about here in the coming weeks. After reading Senator Arlen Specter’s heads-up letter to Judge Roberts (noted by Howard Bashman among others), which deals with some of the questions the Senator plans to ask during the confirmation hearing next month, I think it is the perfect vehicle for such a discussion. Pay particular attention to the four questions the Senator asks Judge Roberts at the end.

So below is the letter in full. I don’t have any analysis at this point, but I will be thinking about it. Any typos are most likely the result of my transcription:

August 8, 2005

Honorable John G. Roberts
E. Barrett Prettyman Courthouse
333 Constitution Avenue, N.W.
Washington, D.C. 20001

Dear Judge Roberts,

I write to give you advance notice of some of the issues I will be asking at your confirmation hearing. In addition to identifying topics, I think it is helpful to outline the background for the questions to save time at the hearing.

In addition to the commentaries of scholars and others about the Supreme Court’s judicial activism and the Court’s usurping Congressional authority, members of Congress are irate about the Court’s denigrating and, really, disrespectful statements about Congress’ competence. In U.S. v. Morrison the Court rejects Congressional findings becuase of “our method of reasoning.” As the dissent notes, the Court’s judgment is “dependent upon a uniquely judicial competence” which implcitly criticizes a lesser quality of Congressional competence.

In Morrison the Court invalidated, by a 5-4 vote, legislation on gender-motivated crimes of violence involving three Virginia Polytechnical Institute football players who were accused of raping a fellow student.

Chief Justice Rehnquist’s opinion, interpreting the Commerce Clause, held Congress cannot regulate “non-economic, violent criminal conduct based solely on that conduct’s aggregate effect on interstate commerce.” The Court acknowledged the “contrast with the lack of Congressional findings that we faced in Lopez” and the Act was “supported by numerous findings regarding the serious impact of gender-motivated violate on victims and their families.”

Writing for four dissenters, Justice Souter referred to “the mountains of data assembled by Congress here showing the effects of violence against women on interstate commerce. Citing longstanding precedents, the dissent said:

The business of the courts is to review Congressional assessment not for soundness but simply for the rationality of concluding that a jurisdictional basis exists in fact.

Noting the obvious advantage Congress has in its fact-finding procedures contrasted with the Court’s limitations, the Souter dissent said:

The record includes reports on gender bias from task forces in 21 states and we have the benefit of specific factual finding in eight separate reports issued by Congress and its committees over the long course leading to its enactment.

From the New Deal Court in 1937 to the abrupt reversals Lopez and Morrison, Congressional authority under the Commerce Clause had gone unchallenged based on Justice Harlan’s rationale in the 1968 case Maryland v. Wirtz:

But where we find the legislators…have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end.

In the face of decades of precedents and a “mountain of data,” Chief Justice Rehnquist rejected Congress’ findings because of our “method of reasoning.”

To this Senator, who has labored through 25 years of intense legislative hearings and fict finding plus prior public service and experience in the real world, my immediate reaction is to wonder how the Court can possibly assert its superiority in its “method of reasoning” over the reasoning of Congress.

The Souter dissent furtehr notes the categorical formalism “...is useful in service a conception of Federalism.” A reinvigoration of Federalism is, of course, the hallmark agenday of the judicial activism of the Rehnquist Court.

Even with the Souter dissent referencing the crisis of 1937, I do not sugggest any move as radical as President Roosevelt’s attempt to pack the Court. I do see a great deal of popular and Congressional dissatisfaction with the judicial activism; and, at a minimum, the Senate’s determination to confirm new justices who will respect Congress’ constitutional role.

My Questions are:

1. Is there any real justification for the Court’s denigrating Congress’ “method of reasoning” in our constitutional structure of separation of power where the elected Congress has the authortity to decide public policy on issues such as gender-based violence effecting interstate commerce?

2. Is there any possible basis for the Court’s characterization of “uniquely judicial competence” implicitly criticising a lesser quality of Congressional competence?

3. Do you agree with Justice Harlan’s jurisprudence concerning legislation on the “rational basis” test as embraced by the dissent contrasted with the majority opinion [in Lopez]?

4. What ais your thinking on the jurisprudence of U.S. v. Lopez and U.S. v. Morrison which overturned almost 60 years of Congress’ power under the Commerce Clause?

Sincerely,
Arlen Specter

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