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December 29, 2006

Carey v. Musladin, a quick analysis ::
legal — tagged , , , and
3:00 pm

I must be feeling better because I find I have a reinvigorated interest in the activities of the Supreme Court. I note particularly the Court’s opinion in Carey v. Musladin, which presented the question of whether the California courts improperly upheld the conviction of a criminal defendant after the victim’s family members were allowed to wear buttons displaying photographs of the victim during the trial. The question was couched within the defendant’s subsequent federal habeas petition, and the Court’s majority opinion stuck to the narrow, technical question of whether upholding the conviction in spite of the buttons was “contrary to” or “an unreasonable application of” clearly established federal law. In a brief opinion by Justice Thomas, the Court quickly answered the question in the negative. But Justice Souter, concurring in the judgment, took a different approach in which he dealt with the question in a more substantive manner:

[O]ne could not seriously deny that allowing spectators at a criminal trial to wear visible buttons with the victim’s photo can raise a risk of improper considerations. The display is no part of the evidence going to guilt or innocence, and the buttons are at once an appeal for sympathy for the victim (and perhaps for those who wear the buttons) and a call for some response from those who see them. On the jurors’ part, that expected response could well seem to be a verdict of guilty, and a sympathetic urge to assuage the grief or rage of survivors with a conviction would be the paradigm of improper consideration.

It’s interesting to compare the majority opinion with Souter’s concurrence. In an effort to build consensus and answer only a narrow, technical question, the majority seems to foreclose the possibility that private actors in a court room could ever do something that would prejudice a criminal defendant during trial. By contrast, Souter’s concurrence does a good job of being just as narrow of an opinion, but leaving open the possibility of prejudice against the defendant based on a different set of facts.

Update: Tony Mauro has an interesting article about Chief Justice Roberts that shades the oddly narrow and technical nature of the Court’s Carey opinion. I noted particularly this paragraph:

Nearly everywhere he goes, Roberts speaks of his desire to preside over a more cohesive and unanimous Court. But with resignation in his voice, he notes that he cannot achieve that goal without active help from his colleagues.

Given Roberts’ intelligence and his overwhelmingly technical mind, as well as this priority he seems to be sticking to, it could be that this opinion simply a product of the type of influence he has over the Court.

October 2, 2006

On this quiet morning, you can almost hear the gavel bang ::
legal — tagged , , , , and
8:07 am

Well, not literally, because according to the Supreme Court calendar oral arguments don’t start up until tomorrow morning. (Which is actually good news because it will give me a chance to catch up on some of the more interesting cases that the court will be hearing this term.) And as Linda Greenhouse notes in this piece in the NY Times, the court will hear some very important cases this term—namely ones dealing with Congress’ Partial Birth Abortion Ban and two schools’ efforts to acheive racial integration in their schools. My take on the two consolidated cases, distilled into one (long) sentence: It’s hard to tell how the abortion cases (summaries here and here) will turn out; however, if the two school integration cases (summaries here and here) wind up standing it may be for the wrong reasons—that is, local control—and not the right ones—i.e., a more honest application of Equal Protection that has less to do with absolute race blindness and more to do with achieving racial equality after hundreds of years of slavery, segregation, and all the disparities that come with them.

With the oncoming October term, our minds should also turn to the thoughts of fun legal reading. And to fill that mental need comes this 600+ page tome on the life of many a liberal lawyer’s hero, Justice Earl Warren. Apparently, far from painting Warren as a standards-bearer for liberal legal causes, Justice for All: Earl Warren and the Nation He Made doesn’t shy away from the type of figure Warren cut before he made it onto the court:

...Warren was an almost stereotypical Republican before joining the high court. As Jim Newton reveals in his meticulously researched and well-told new biography, “Justice for All,” Warren was a zealous prosecutor, passionately anti-Communist, pro-business, anti-New Deal, anti-gambling, anti-pornography, tough on crime (his father was murdered in their Bakersfield home in 1938), and he favored interning California’s Japanese and their American-born children after Pearl Harbor.

How interesting! One assertion I made in the past was that it was precisely because Republicans of the 1950’s had no political ties to Southern segregationists that they had the freedom to act as both their conscience and the Constitution required them to. Based on the review, it sounds that Warren’s actions once he got on the court were quite consistent with that. But we’ll see what I think after I read the book.

August 31, 2006

Women clerking at the Supreme Court ::
legal — tagged , , , and
9:33 am

This Linda Greenhouse article in the NY Times on the precipitous drop in the number of women clerking at the US Supreme Court came up in conversation yesterday, and Rick asked me to blog about it. I found the article interesting not so much because of its content—as the SCOTUSBlog people and the article itself noted, Volokh Conspiracy already covered the issue of the underrepresentation of women as Supreme Court clerks—but rather because of how many of the Justices provided interviews that appeared to conflict with each other. Like, e.g., Justices Souter and Breyer both suggested that the drop in the number of women clerking simply “reflected a random variation in the applicant pool.” (Oh, and call me crazy, but I didn’t think David Souter, famous for guarding his privacy, even gave interviews.) By contrast, Justice Ginsburg observed the drop inthe number of women clerking for the Court, declined to give any particular reason, and suggested that Greenhouse “ask a justice who has not hired any women for the coming term….” While such a response doesn’t necessarily call up a reaction of oh, snap!, it does suggest a dynamic among the Justices that is, well, a little less than entirely harmonious.

My memory might not be working right and I may be reading too much into the subtext of the article, but I seem to recall that in the Rehnquist era, Justices were much more reticent when asked to provide this type of information on the inner workings of the court. Could this article foreshadow a new and possible more contentious public face of the Court? I guess time will only tell.

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.

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 30, 2006

But what’s the real problem? ::
politics — tagged , , and
10:46 am

I have to admit, I came late to the Alito debate. Mostly it was because the one time I turned on the hearings was the point at which Joe Biden donned a Princeton hat and took his alotted time not to talk about any substantive issues regarding the Alito hearing, but mostly—as near as I can tell—to hear himself talk. Overall it sounds like the hearings generally went the same way. Both sides created a caricature of the type of Jurist Alito has been over the past fifteen years, and then used that caricature to either hold him up or tear him down. But at the end of it all, no one really had a serious discussion about him and overall the hearings seemed to be a profound waste of time. Also, as a result of the hearings, it seems that Democrats and Republicans are coming out on two extremes on Alito’s confirmation. On the one hand, he should be confirmed without a fight (so say the Republicans) and on the other, Alito should be filibustered (see the arguments made by Democrats).

With that being the prevailing argument, it’s interesting to see what the centrist bloggers are writing about the who confirmation fight. For example, New Donkey argues:

If we are to have a filibuster, let it be one that is short on senatorial bloviation, and long on clear and concise persuasion. And if nothing else, maybe the debate will complicate Bush’s State of the Union Address.

It’s a nice idea, but if the actual confirmation hearings were any indicator, then the Democrats are in no position to start having such an argument. The Bull Moose makes the astute observation:

Here’s a useful rule of thumb when judging the political effectiveness of a nomination fight – have you come off worse than the nominee? And in the case of Alito, this is not even a close call. The Democratic opposition presented themselves as badgering, bloviating, politically correct, elitist, unattractive obstructionists. And the nominee comes off smelling like roses.

That suggests that the Democrats are going to have to reverse course in a pretty serious way if they are going to make a serious, substantive challenge to the Alito confirmation that we Americans, who don’t pay much attention to what goes on in the courts and who likely distrust what the third branch is doing, find palatable.

But there is a larger problem here, which isn’t about what Alito might do if he is confirmed, but rather, what the Senate has already done in the hearings. If you’re like me and think the Senate should take a more nuanced approach to governance, and to avoid such extreme, polemic arguments as the ones we saw with Alito, then it seems that they failed in their responsibility in a pretty serious way.

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 16, 2006

Supreme Court nominations: a history of public hearings? ::
legal — tagged , , and
2:51 pm

By way of How Appealing comes this recent CRS report (PDF) on the history of presidential nominations to the U.S. Supreme Court and Senate action on those nominations. What’s interesting is the treatment report’s discussion of the advent of public hearings staged by the Judiciary Committee:

In 1916, for the first time, the committee held open confirmation hearings on a Supreme Court nomination—that of Louis D. Brandeis to be an Associate Justice—at which outside witnesses (but not the nominee) testified. More days of public hearings (19) were held on the Brandeis nomination than on any Supreme Court nomination since. The Brandeis hearings, however, did not set immediately into place a new policy of open confirmation hearings for Supreme Court nominations, since each of the next six nominations (during the years 1916 to1923) was either considered directly by the Senate, without referral to the Judiciary Committee, or was acted on by the committee without the holding of confirmation hearings.

Kind of interesting. During an earlier discussion with someone at school, I’d heard that the Senate hadn’t implemented the public hearing procedure until the Court handed down the Brown decision in 1954. I guess that was discussion was inaccurate. But even more interesting is the question of why the Senate decided to start having public hearings. Tied with that question is the more specific question of why the Senate decided to have public hearings—and very extensive ones—for Brandeis. The report doesn’t address those questions, since they’re likely fraught with political observations. But if you have any suggestions, I’d love to hear them—drop an email at gregATpageswithinDOTcom?

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.

January 2, 2006

David Hackett Souter ::
books — tagged , , and
6:44 pm

Over the past week and a half, I’ve been enjoying not reading much of anything at all. But when I have been reading, I’ve been working my way through this biography of Justice David Souter which, if you enjoy a good Supreme Court story, you’ll probably like as well. What’s particularly interesting about Tinsley Yarbrough’s narrative is how intensely personal it is, despite the fact that he was unable to interview Justice Souter or his clerks directly (as the book points out, Souter is legendary guarding his privacy). But more interestingly, the book does a great job of contrasting Souter’s judicial conservativism—which includes a high respect for precedent and a very process-oriented approach to deciding cases—with the political conservaivism of other Justices on the Court who are more ready to overturn cases with which they do not agree. During my time at law school, at which I’ve learned more about the legal process generally and the Supreme Court specifically, I’ve come to find that Souter’s moderately conservative legal approach to cases—which many times leads him to politically liberal conclusions—plays an important role on the current Court, which at times has been all too willing to throw out longstanding precedent to achieve a desired (and mostly conservative) outcome. And Yarbrough’s book does a great job of explaining how Justice Souter became the complex and thoughtful Justice that he is today.

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 19, 2005

John Roberts and Brian Burgess — what do they mean for Vermont? ::
legal — tagged , , , , , and
11:15 am

Substituting for Peter Freyne on Seven Days’ Inside Track column, Cheryl Hannah (a VLS professor) soberly discusses the effect that a John Roberts confirmation would have on a Woman’s right to abortion. She also connects the changing makeup of the United States Supreme Court to the new appointment of Brian Burgess to the Vermont Supreme Court. Hannah notes that although Vermont has its own state Supreme Court precedents that appears to guarantee abortion rights, that doesn’t necessarily guarantee that abortion rights would be protected in this state if Roe were overturned. She notes that this reality

is why we ought to be as concerned about who is appointed to the Vermont Supreme Court as we are about who is appointed to the United States Supreme Court. Indeed, when Brian Burgess, Governor Douglas’ latest appointee to the Vermont bench, comes up for confirmation in January, he should be asked about his view of Beecham, just as Roberts should be asked about his view of Roe.

I brought up the new Burgess appointment in two earlier posts, but I didn’t note the implications of his appointment with as much particularity as this article. So I recommend you go to Seven Days and read it.

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.

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