January 13, 2006
Justice Who? ::
legal — tagged civil rights, conlaw, judicial appointments, legal, politics and SCOTUS
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 civil rights, conlaw, judicial appointments, legal, politics and SCOTUS
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 14, 2005
Unlikely Heroes ::
books, legal — tagged books, civil rights, conlaw, judicial appointments and legal
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 10, 2005
At least one conservate group doesn’t like Roberts ::
politics, legal — tagged civil rights, conlaw, judicial appointments, legal, politics and SCOTUS
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 civil rights, conlaw, judicial appointments, legal, politics and SCOTUS
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.
