Constitutional Law Prof Blog

The Backstory on State Secrets

The backstory of U.S. v. Reynolds, the Supreme Court case that gave rise to the modern state secrets privilege, is well known.  But you might want to check out this 14-minute segment on NPR's This American Life.  Host Ira Glass interviews Barry Siegel, author of Claim of Privilege, and Judy Loether, who lost her father in the B-29 crash that formed the plaintiffs' underlying tort claims in the Reynolds litigation.  This very short piece could make a nice supplement to your lessons on the state secrets privilege.

Click on the link above--the one at "14-minute segment"--click on the full episode, and move the cursor in the audio box forward in the program.  This segment begins at 29:05.

Thanks to student Gina LoGalbo for the tip.

SDS

Texas Mom Seeks Civil Right to Counsel at Supreme Court

Tracey Rhine, a Texas mother who lost custody of her child to temporary foster parents in a private custody dispute in the Texas courts, filed a cert. petition with the U.S. Supreme Court to challenge the Texas courts' denial of appointed counsel, according to the Texas Lawyer.

The Texas Department of Protective and Regulatory Services removed Rhine's child from Rhine's custody and placed the child with a temporary foster couple.  After Rhine and the Department agreed upon conditions, the Department placed the child back with Rhine.  The foster couple then sought custody in the Texas courts, and Rhine moved for court-appointed counsel.  The Texas courts rejected Rhine's request for appointed trial counsel and awarded custody to the foster parents.  The state appellate court rejected Rhine's request for appointed appellate counsel and remanded the case to the trial court.  The trial court found that Rhine was indigent, but did not qualify for court-appointed counsel, because the underlying custody case was not initiated by the state (it was initiated by the foster parents).

Texas law provides for court-appointed counsel for indigent litigants in state-initiated deprivation-of-parental-rights proceedings, but not in private custody disputes.  The differential treatment raises equal protection concerns, and Rhine argued in her cert. petition that the Texas courts' denial of appointed counsel in her case violated the Fourteenth Amendment Equal Protection Clause. 

Rhine's argument is not without precedent--but it's state constitutional precedent.  The Illinois and North Dakota courts have ruled that state equal protection doctrine mandates appointment of counsel under similar circumstances.  California courts have gone the other way under their state constitution.

Rhine's argument on equal protection grounds also sidesteps the major hurdle that plaintiffs face in seeking a civil right to counsel: the Supreme Court's 1981 case Lassiter v. Department of Social Services.  In that case, the Court ruled that an indigent litigant had no categorical right to counsel under the Due Process Clause--that due process demanded a balance (the Mathews v. Eldridge balance) to determine whether an indigent litigant qualified for appointed counsel in any particular case.  Oddly--and without citation to authority--the Court in Lassiter established a presumption against appointed counsel except in cases where physical liberty was at stake.

Rhine's case avoids the Lassiter hurdle by arguing equal protection, not due process.  And on the right to appellate counsel, Rhine's case at least potentially avoids the Lassiter hurdle by pursuing an argument tilted toward equal protection under Douglas v. California (establishing a right to appellate counsel for criminal defendants on equal protection grounds).  (I made that argument here and here.)  Thus Rhine doesn't appear to be taking on Lassiter--that could have been a tough case in the current political and economic environment, and with the current composition of the Court.  Instead, Rhine is moving around Lassiter with an argument that worked under at least two state constitutions. 

If the Court takes the case, three issues will be important to watch: first, the Court's treatment of the Fourteenth Amendment Equal Protection Clause; second, the Court's treatment of access to justice issues (and, possibly, how it treats the fundamental right to access in Tennessee v. Lane in this different context); and finally, the Court's treatment of state constitutional rulings on parallel provisions.

For more on the civil right to counsel movement, check out the National Coalition for a Civil Right to Counsel web-site.

SDS

Sotomayor and Hatch on Second Amendment Incorporation

Sen. Orrin Hatch (R-UT) today questioned Supreme Court nominee Judge Sonia Sotomayor on Second Amendment application to the states.  The exchange--or, rather, Hatch's statements--reveal several political and doctrinal problems for those who simultaneously favor Second Amendment incorporation, originalism, and a restrained judiciary.  Under Supreme Court precedent, these values are in fundamental tension in the incorporation debates, and only the Supreme Court can provide a solution.  (But, ironically, the solution for this camp may be worse than the problem.)

Here's part of the exchange:

Hatch: I understand.  Let me turn to your decision in Maloney v. Cuomo.  [Our post, by RR, here.]  This was the first post-Heller decision about the Second Amendment to reach any federal court, or federal appeals court.  I think I should be more specific.  In this case, you held that the Second Amendment applies only to the federal government, not to the states, and this was after Heller.  And am I right that your authority for that proposition was the Supreme Court's 1886 decision in Presser v. Illinois?

Sotomayor: That, plus some Second Circuit precedent that had held . . .

Hatch: OK

Sotomayor: . . . that it had not been--that the amendment had not . . .

Hatch: But Presser was definitely one of the . . .

Sotomayor: It was, but . . .

Hatch: . . . cases you relied on?  OK.  In that case--or, I should say, that case involved the Fourteenth Amendment's Privileges and Immunities Clause.  Is that correct?  You're aware of that?

Sotomayor: It may have.  I haven't read it recently enough to remember exactly.

Hatch: You can take my word on it.

Sotomayor: OK.  I'll accept . . .

Hatch: Thank you.  Last year's decision in Heller involved the District of Columbia, so it did not decide the issue of whether the Second Amendment applies to the states or is incorporated, but the Court did say that its 19th century cases about applying the Bill of Rights to the states, quote, "did not engage the sort of Fourteenth Amendment inquiry required by our later cases," unquote.

Now here's my question: Am I right that those later cases to which the Court referred involved the Fourteenth Amendment's Due Process Clause rather than its Privileges and Immunities Clause?

. . .

Isn't the Presser case that you relied on in Maloney to say that the Second Amendment does not apply to the states one of those 19th century cases where they've used the Privileges and Immunities Clause, not the Fourteenth Amendment Due Process Clause, to incorporate?

. . .

Well, the reason, the reason I'm going over this is because I believe you've applied the wrong line of cases in Maloney, because you were applying cases that used the Privileges and Immunities Clause and not the cases that used the Fourteenth Amendment Due Process Clause.

. . .

Well the point that I'm really making is that the decision was based upon a 19th century case that relied on the Privileges and Immunities Clause, which is not the clause that we used to invoke the doctrine of incorporation today, and that's just an important consideration for you as you see these cases in the future.

The problem is that the values of Second Amendment incorporation, originalism, and a restrained judiciary (or at least a restrained circuit judge, one who does not make policy) run up against each other under the Court's jurisprudence.  Under Hatch's 19th century cases--which, alas, are still good law--Judge Sotomayor could not have incorporated the Second Amendment by way of the Fourteenth Amendment Privileges or Immunities Clause.  Everyone--including the Seventh and Ninth Circuits--seems to agree on this.

But then judicial restraint runs up against incorporation: a restrained circuit court judge should not incorporate the Second Amendment under the Due Process Clause; this is a job for only the Supreme Court.  (Favoring incorporation over the value of a restrained circuit judge puts Hatch in the surprising company of the Ninth Circuit--the archetypal "activist" court--and at odds with a Seventh Circuit panel that included Judges Easterbrook and Posner.)

And originalism runs up against both Due Process incorporation and the desire for restrained circuit judges.  An originalist method would point to incorporation--by way of the Privileges or Immunities Clause, not the Due Process Clause.  But this would have required Judge Sotomayor to vote to ignore those 19th century cases--clearly beyond a restrained circuit judge's authority.

The best a restrained circuit judge could do is exactly what Judge Sotomayor--and Judges Easterbrook and Posner--did: punt on Second Amendment incorporation until the Supreme Court rules.

Those simultaneously committed to Second Amendment incorporation, originalism, and a restrained judiciary shouldn't fault Judge Sotomayor for her restrained decision in Maloney.  Instead, they should press the Supreme Court to overturn those 19th century cases and incorporate the Second Amendment by way of the Fourteenth Amendment Privileges or Immunities Clause.

But for this crew, this solution might well be worse than the problem.  A revitalized Privileges or Immunities Clause could provide strong ammunition for those who seek more and broader unenumerated (and politically controversial) rights through the courts and a greater role for the federal courts in protecting individual rights against the states.

SDS

Sotomayor Confirmation Hearings Underway!

(Photo courtesy - Blog of Legal Times - Credit Diego M. Radzinschi)

The long-awaited day is here.  Shortly after this writing is posted, Judge Sotomayor will be introduced and will give remarks.  If you are not near a television, interview viewing is available at C-SPAN, ABC News, CNN, and PBS.  SCOTUSBlog will also be liveblogging the event.

If you want to edify yourself prior to the hearing, SCOTUSBlog has a helpful list of all of the reports regarding Judge Sotomayor's judicial rulings.  A list of the witnesses expected to appear can be found here.

Over at Balkinization, Jack Balkin has a great post about the value of these confirmation hearings.   He states, in part:

Many people are frustrated by the senators' tendencies to showboat and posture. On the other hand, senators are keenly attuned to public opinion. If confirmation hearings succeed in focusing the public on the Constitution and shape constitutional common sense in line with the mainstream of public opinion, they help serve a important goal. They help, in limited ways, to signal to the judiciary-- and not just to the candidate-- how the public feels about the Constitution and the role of the judiciary.

This is an interesting point.  If true, based on the proceedings thus far, we should get an intriguing discussion about the definition and limits of "judicial activism" as well as the methods of interpreting the Constitution.   

As always, we will keep you abreast of the lastest news and provide analysis. 

NLS 

 

Interview with Ruth Bader Ginsburg in NYT

"With the confirmation hearings of Judge Sonia Sotomayor just days away, an interview with Justice Ruth Bader Ginsburg in The Times’s magazine for Sunday reveals her very outspoken views on critics of the nominee and the composition of the court."  So reports the NYT own blog.

The magazine's interview, by Emily Bazelon, does make interesting reading.  Ginsburg speaks explicitly about recent cases such as Ricci and Heller as well as abortion and reproductive rights. 

On equal protection on the basis of sex, there is this fascinating colloquy, in which Ginsburg specifically identifies the gender bias of Justice Stevens:

Q: You have written, “To turn in a new direction, the court first had to gain an understanding that legislation apparently designed to benefit or protect women could have the opposite effect.” The pedestal versus the cage. Has the court made that turn completely, or is there still more work to be done?

JUSTICE GINSBURG: Not completely, as you can see in the case involving whether a child acquires citizenship from an unwed father. [Nguyen v. INS, in which the court in 2001 upheld, by 5 to 4, a law that set different requirements for a child to become a citizen, depending on whether his citizenship rights came from his unmarried mother or his unmarried father.] The majority thought there was something about the link between a mother and a child that doesn’t exist between the father and a child. But in fact the child in the case had been brought up by his father.

They were held back by a way of looking at the world in which a man who wasn’t married simply was not responsible. There must have been so many repetitions of Madame Butterfly in World War II. And for Justice Stevens [who voted with the majority], that was part of his experience. I think that’s going to be over in the next generation, these kinds of rulings.

RR

Conference: Supreme Court Preview

The Institute of Bill of Rights Law
22nd Annual Supreme Court Preview
Friday & Saturday, October 2 & 3, 2009
William & Mary School of Law
Williamsburg, Virginia

 

Featuring Distinguished Guest
Former United States Supreme Court Justice
Chancellor of the College of William & Mary
Sandra Day O'Connor

 

For more information see IBRL.org here.

RR

Wisconsin Diploma Privilege and the Dormant Commerce Clause

As most readers are aware, Wisconsin is the only state in the union with a "diploma privilege," which means a graduate from a Wisconsin law school is automatically admitted to the Wisconsin bar upon law school graduation.  A group of plaintiffs filed a class action challenging the diploma privilege.  While the district court granted a motion to dismiss the case, yesterday the Seventh Circuit reinstated the action.  In an opinion by Judge Posner, the panel ruled that the action should not have been dismissed as the record was insufficiently developed on the curricula at the Wisconsin law schools.  Judge Posner stated:

which is likely, since the authors of casebooks aim at a national market. Marquette and Madison are law schools of national stature, and we can hardly infer without any evidence that they concentrate on educating their students in the law of the state that these law schools happen to be located in rather than prepare them to practice anywhere in the United States. Indeed, since no graduates of these law schools take the Wisconsin bar exam, the faculty has less incentive to spend time drilling them on Wisconsin law than the faculty of most law schools in other states would have to concentrate their teaching on the law of their state in order to increase the bar exam pass rate of their law school’s graduates.

The defendants argue that the rule of the Wisconsin Supreme Court that we quoted requires that the curriculum of the Wisconsin law schools include Wisconsin law. But that cannot be inferred from the language of the rule or from the list of mandatory and elective courses. The rule merely requires the law schools to offer a rigorous, well-rounded legal education, and it cannot be assumed that such an education must be oriented toward the law of a particular state, even the state in which the school is located. The reference to “rules and principles of substantive and procedural law as they may arise in the courts and administrative agencies of the United States and this state” may denote those rules and principles that are common across American states, including the rules and principles of federal law, of the common law, and of uniform statutes such as the Uniform Commercial Code—in short, the rules and principles that are the common core of legal studies in all law schools that have a national rather than local orientation. This interpretation of the rule is consistent with the fact that Wisconsin permits lawyers who have practiced in another state for a time to practice in Wisconsin without having to pass the bar exam or demonstrate any knowledge of Wisconsin law. 

Christine Hurt, a professor at the University of Illinois-UC - and formerly of Marquette - blogs about her experiences at Marquette at The Conglomerate:

Posner seems to want more facts on exactly how Wisconsin-y the curricula at Wisconsin and Marquette are.  Gordon has argued that his curriculum was Wisconsin-y, but I didn't see a lot of this at Marquette.   No one ever gave me any parameters as to what to teach in my courses beyond a slim course description, which I don't remember mentioning Wisconsin.  Of course, I may be jaded because, like Eric, I am no fan of the privilege.  I think it skews the incentives of graduates to stay in the Milwaukee area, limiting their own opportunities and saturating the market.  It may also incentivize applicants with low success indicators to borrow large amounts of money to go to law school because, if accepted, they are almost guaranteed a law license at the end of three years.

Joseph D. Kearney, the current Dean at Marquette, had another view on Marquette's faculty blog:

This is the beginning of my seventh year as dean and thirteenth as a member of the faculty at Marquette; throughout this time Marquette Law School has sought to ensure—because of the diploma privilege—that our students are especially introduced to the law and legal profession of Wisconsin.  Certainly I expect that it is not the case (to quote a “supposition” posed by the Seventh Circuit) “that Wisconsin law is no greater part of the curriculum of the Marquette and Madison law schools than it is of the law schools of Harvard, Yale, Columbia, Virginia, the University of Texas, Notre Dame, the University of Chicago, the University of Oklahoma, and the University of Northern Illinois.”   Indeed, I know it not to be the case at Marquette, and I expect that a similar thing is true at the University of Wisconsin.  To be sure, it will take a while to demonstrate all this through the litigation system, but Marquette will provide the Attorney General’s office any support that it requires in marshaling evidence.

Two final points about the case.  First, Judge Posner cites Hunt v. Washington State Apple Advertising Commission, a perennial casebook favorite.  This fact pattern could be an excellent way to make the case more relevant to students, especially since it focuses on something so essential to their current lives - the bar exam.   Second, Judge Posner also mentioned the possibility of the "market-participant" exception.  Since students are usually hungry for more examples of how the exception works in real life, this case could be useful for that purpose as well.

We'll continue to watch the case and update on the proceedings.

NLS

In case you missed it . . . Summer Edition Part 1

Hello dear profs!  This has been quite a busy summer.   Here a a few stories you might have missed while teaching, vacationing, or working on your scholarship.   I present these in no particular order:

1.  Pre-emption - Recently, the Third Circuit heard a case challenging the Snapple company's use of the term "natural" in its advertising.  The district court dismissed the case, reasoning that the FDA regulations on the issue had occupied the field and ended the matter.   However, in the intervening period, the Supreme Court decided the Wyeth case.  According to the Law.com write-up, the Third Circuit judges were quite aware of the change and questioned the continuing validity of the doctrine.  Lawyers for the food industry fear a ruling for the plaintiffs in this case could "open the floodgates to consumer class action claims against a whole slew of food sellers and manufacturers."

2.  Legal Theory Papers -  The Legal Theory Blog posts two papers that are worth a read.  The first is a  a paper by Prof. Richard A. Paschal (GMU) entitled "Congressional Power to Change Constitutional Law - Three Lacunae.  While conceding that the norm is that Congress cannot do so, in three areas - "state sovereign immunity under the Eleventh Amendment, intergovernmental tax immunity for both state and federal governments, and the Dormant Commerce Clause" - it can and does.   The second is a paper by law clerk Blake Denton entitled "While the Senate Sleeps: Do Contemporary Events Warrant a New Interpretation of the Recess Appointments Clause?"  According to the abstract, the paper "uses a "living Constitution" approach and concludes that in light of size, structure, and composition of the contemporary federal judiciary, the purposes underlying the Recess Appointments Clause's ratification are no longer met when the Clause is applied to vacancies in Article III Courts."   Both of these papers appear to raise quite intriguing questions on constitutional law.

3.  Dorf on the Important Counter-majoritarian Difficulty - Over at Dorf on Law, Professor Dorf argues that while the traditional counter-majoritarian difficulty - unelected judges overturning laws enacted by a popularly elected legislature - there are significant non-judicial counter-majoritarian difficulties as well.   Among these are: campaign finance and lobbying, super-majority requirements (such as 60 to break a filibuster) in Congress, and "the Senate itself  . . . iinsofar as it vastly over-represents residents of low-population states, which tend to be disproportionately agricultural and rural.

4. Fundamental Rights - Two quick notes here.  First, the Arizona legislature has passed a bill that would further restrict parental notice requirements and strengthen waiting period requirements.  Second, some doctors are threatening to end their practices if President Obama follows through on his goal to remove the so-called "conscience clauses" that permit health care professionals to refuse to provide certain medications or perform certain procedures on (primarily) religious grounds. 

That's all for now, but I'm sure we'll have more to report before classes begin!

NLS

New York state's constitution and the newly appointed Lieutenant-Governor

New York’s Governor David Paterson - - - who was once the Lieutenant-Governor under New York’s Governor Eliot Spitzer before Spitzer’s scandal-induced resignation in March 2008- - - appointed  Richard Ravitch as Lieutenant-Governor today.  Paterson’s timing is prompted by the power struggle in the state senate; a Lt-Gov. could break the deadlock.  Further, without a Lt-Governor and without a clear "temporary president" of the state senate (given the power struggle), it may be unclear who would assume the governorship if Paterson were unable to serve.

However, the constitutionality of Paterson’s appointment of a Lt-Gov is far from clear.  The New York state constitution does not specifically provide such power.  Article IV, section 6 provides:

The lieutenant-governor shall possess the same qualifications of eligibility for office as the governor. The lieutenant-governor shall be the president of the senate but shall have only a casting vote therein. The lieutenant- governor shall receive for his or her services an annual salary to be fixed by joint resolution of the senate and assembly.

In case of vacancy in the offices of both governor and lieutenant- governor, a governor and lieutenant-governor shall be elected for the remainder of the term at the next general election happening not less than three months after both offices shall have become vacant. No election of a lieutenant-governor shall be had in any event except at the time of electing a governor.

In case of vacancy in the offices of both governor and lieutenant- governor or if both of them shall be impeached, absent from the state or otherwise unable to discharge the powers and duties of the office of governor, the temporary president of the senate shall act as governor until the inability shall cease or until a governor shall be elected.

In case of vacancy in the office of lieutenant-governor alone, or if the lieutenant-governor shall be impeached, absent from the state or otherwise unable to discharge the duties of office, the temporary president of the senate shall perform all the duties of lieutenant- governor during such vacancy or inability.

If, when the duty of acting as governor devolves upon the temporary president of the senate, there be a vacancy in such office or the temporary president of the senate shall be absent from the state or otherwise unable to discharge the duties of governor, the speaker of the assembly shall act as governor during such vacancy or inability.

The legislature may provide for the devolution of the duty of acting as governor in any case not provided for in this article.

Thus, even apart from the problem that in NY at the moment there is not agreement upon the identity of  the “temporary president if the senate,”  the state constitution seems to clearly contemplate that the Lt-Governor is not simply selected by the Governor.  In addition to section 6 above, section 1  provides:

The executive power shall be vested in the governor, who shall hold office for four years; the lieutenant-governor shall be chosen at the same time, and for the same term. The governor and lieutenant-governor shall be chosen at the general election held in the year nineteen hundred thirty-eight, and each fourth year thereafter. They shall be chosen jointly, by the casting by each voter of a single vote applicable to both offices, and the legislature by law shall provide for making such choice in such manner. The respective persons having the highest number of votes cast jointly for them for governor and lieutenant-governor respectively shall be elected.

However, Paterson is relying on the opinions of advocacy groups and NY “legal experts” that he has the power to appoint a Lt-Governor  under the Public Officers Law and that such an action is “not precluded” by the state constitution.  The brief statement is available here on the “Capitol Confidential” blog of the Albany Times-Union which also has a video of Paterson’s brief speech, statements of legislators, and is a great source for continuing coverage

Certainly, there will be a constitutional challenge in the NY state courts.  One legislator is already calling for the court to assume its role as an “impartial, authoritative umpire” and not make use of the “political question” “dodge,” arguing that to refrain from deciding is actually a type of judicial activism:  

For a month, we have had a crippled Senate, gubernatorial succession in turmoil, and the finances and operations of local governments throughout the state endangered. Ironically, the purest form of judicial activism is when a court, on "political question" grounds, refuses to act at all.

 

It may not be a "constitutional crisis" in the Empire State, but there is certainly much constitutional confusion.     

RR

Want to Attend the Sotomayor Confirmation Hearings?

The Senate Judiciary Committee has posted guidelines for members of the media and the public who would like to attend the Confirmation Hearings.

Guidelines For Public Attendance At The Nomination Hearing
Of Sonia Sotomayor
To Be An Associate Justice
Of The Supreme Court Of The United States

At all times, those standing in line shall abide by the rules established by the Senate Judiciary Committee.

Due to limited space in the hearing room, admittance to the hearings is only for a limited period of time in order to allow more members of the public access to the hearings.

Passes to hearings will be distributed on a first come, first serve basis. Passes do not guarantee admission into the hearing and are only valid for the day in which the pass is issued.

Distribution of the passes will begin at 8:00 A.M. on each day of the hearings at the following location:

On Monday, July 13, 2009, continuing through the conclusion of the hearings: The line for admission into the hearing will start at the NW Corner of First Street and C Street NE.
Individuals who have received a pass will be ushered into the hearing room by Judiciary Committee staff at different intervals throughout the day. Once a pass is obtained, pass holders will be advised to return to the hearing lines (see map above) at least 1 hour before the estimated time of entry to the hearing room.

No picketing or demonstrating will be allowed by individuals standing in line. At any time authorized staff can request the removal of any person from the line for failure to adhere to established rules or other security/safety related reasons.

Once persons holding passes have been cleared by security, they must remain with the group at all times. Failure to follow this guideline will result in individuals not being admitted into the hearing room.

Persons who received a pass and were not admitted to the hearing on the day in which the pass was issued will not receive special accommodations for the next day of hearings. Individuals wishing to wait in line for the following day's hearing may do so ONLY after the current day's hearing has concluded.

The following items are prohibited for those attending the hearing:

Firearms; weapons of any kind; ammunition (either real or simulated); explosives of any kind (including fireworks); knives; blades; razors; box cutters; or other sharp objects (of any length); any pointed object (i.e. knitting needles, letter openers, etc.); aerosol sprays; cans and bottles; coolers; thermal or glass containers; mace; pepper spray; sticks, poles; pocket or hand tools (such as a Leatherman); packages; backpacks; large bags; duffel bags; camera bags; suitcases; laser pointers; strollers; chairs; umbrellas; food or beverages of any kind; posters, signs or placards larger than  8.5 inches by 11 inches (must be held directly in front of the body and no higher than the shoulders); signage or clothing with profanity or images deemed inappropriate by security screeners; and any other items at the discretion of the security screeners that may pose a potential safety hazard.

Photography, of any kind, is strictly prohibited in the hearing room, except for authorized staff.

RR

Delhi High Court Invalidates India's Sodomy Law: Analysis

Section 377 of the India Penal Code criminalizing sodomy has been declared unconstitutional by the Delhi High Court. 

 In a lengthy 105 page opinion, available as download here, authored by Chief Justice Muralidhar, the Court reasoned that the "underlying theme of the Indian Constitution" is that of "inclusiveness":

The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognizing a role for everyone.  Those perceived by the majority as "deviants" pr "different" are not on that score excluded or ostracized. . . . In our view, Indian Constitutional law does not permit  the statutory criminal law to be held captive by the popular misconceptions of who LGBT are.  It cannot be forgotten that discrimination is anti-thesis of equality and that it is the recognition of equality which will foster the dignity of every individual.

Opinion at paragraphs 130-131.

The Court's examination of Indian constitutional law stresses the Indian Constitution as "first and foremost a social document," noting that the fundamental rights provisions are the "conscience of the Constitution." (paragraph 80).   The Court considered principles of dignity, privacy, and equality in the context of the Indian and other constitutions.  On the issue of whether the criminalization of sodomy furthered a governmental interest or was related to that interest,  the Court discussed specific cases from other nations including Lawrence v. Texas (US), Dudgeon v. UK, Toonen v. Australia, Norris v. Republic of Ireland, National Coalition for Gay and Lesbian Equality v. Minister of Justice (South Africa), and Vriend v. Alberta (Canada).

The Court also quoted Justice Michael Kirby's recent speech, Homosexual Law Reform: An Ongoing Blind Spot of the Commonwealth of Nations, for rationales supporting the conclusion that the anti-sodomy laws derived from the imperial rules of the British crown are "wrong."  (paragraph 85).

In terms of judicial power, the Court stressed that in a democratic society it is the role of the judiciary to protect fundamental rights (paragraph 125), but noted that Parliament could choose to amend the law to be consistent with the recommendation of the Law Commission (and presumably the Court's Judgment) (paragraph 132).  The Court clarified that the judgment was not retroactive.

The Times of India and the BBC have reports on the court's judgment and reactions to it, including videos.

RR

Ohio Supreme Court Abortion ruling

Yesterday, the Ohio Supreme Court ruled in an interesting case - Roe v. Planned Parenthood of Southwest Ohio.  The facts of this most intriguing case are these: Thirteen year-old Jane Roe and her 21-year old soccer ccoach John Haller began a sexual relationship resulting in Jane's pregnancy.  Haller encouraged Jane to terminate the pregnancy.  Upon arriving at the clinic, she was asked to fill out a consent form.  Per Haller's instructions, she listed her father's name and address correctly, but provided Haller's phone number.  The clinic called Haller to request parental consent.  When Jane's real parents discovered the chicanery, they called the police.  Haller was arrested for sexual battery.  Planned Parenthood was also investigated, but no criminal charges were filed.  Therefore, the Roes sued Planned Parenthood for violating various Ohio statutes, including, inter alia, failing to obtain parental consent, failing to obtain Jane's properly informed consent, and failing report to report suspected sexual abuse of a minor. 

The last count really is key to the importance of the case.  In discovery, the Roes sought to obtain not only Jane's medical records (which Planned Parenthood provided) but also the redacted medical records of all Planned Parenthood clients going back ten years.  The Roes asserted the information was necessary to prove that Planned Parenthood had engaged in a "pattern and practice" of ignoring possible sexual abuse.  Based on state precedents, the Ohio Supreme Court ruled that there is no such right to the information of third parties, even if redacted.

While the claims were primarily resolved on state law grounds, the ramifications for federal and state law are many.  The majority of states require some form of parental notification or consent.  But the facts of this case highlight just how tenuous those laws can be.  A brief search of the legal literature reveals but a few articles,* but there are enough articles and cases to prove that this is not the first time this has happened, and it will likely not be the last. 

So, what are the options on the consent issue?  The burden could be placed firmly on the doctor to be certain that the consent is legitimate.  However, the question is where does one draw the line in such situations.  Haller engaged in a very manipulative scheme.  It's not impossible to see some clinic being duped in the future on similar facts.  If a clinic truly does act in good faith, should it be penalized?  Moreover, at least one article argues that such a high burden might be an unconstitutional violation of Casey's "undue burden" standard.**  Another option is to follow the lead of states likeTexas and Louisiana which require parental consent forms to be notarized.  However, even this might not entirely eliminate the fraud issue.  At present, it seems the most important thing to do is to recognize the issue and close any legislative loopholes (hopefully without creating new ones).

The second issue is the privacy ruling.  The striking part of the ruling is that the parents were not entitled to even the redacted medical information.  While the case was decided on state law grounds, and tort law as opposed to constitutional law, the right to informational privacy - especially about health information - seems to be gaining traction in this nation (see HIPAA).  While the Court has yet to fully constitutionalize the right (see Whalen), in this context - where another right of privacy is implicated - there might be a stronger argument.*** 

I hope you find this case interesting in teaching these concepts. 

NLS

* Katheryn D. Katz, The Pregnant Child's Right To Self-Determination, 62 Alb. L. Rev. 1119 (1999).

** Pammela S. Quinn, Note, Preserving Minors' Rights After Casey: The “New Battlefield” of Negligence and Strict Liability Statutes, 49 Duke L.J. 297 (1999).

*** Ingrid Schüpbach Martin,  The Right To Stay In The Closet: Information Disclosures By Government Officials, 32 Seton Hall L. Rev. 407 (2002).

Franken is Minnesota's US Senator: The Minnesota Supreme Court distinguishes Bush v. Gore

The Minnesota Supreme Court has issued its decision regarding the Franken-Coleman election (from November 2008).  With Coleman's concession, this ends the saga;  Al Franken will be seated, giving the Democratic party a 60 person "super" majority.

The 32 page per curiam opinion (pdf here) was joined by five justices (not participating were two justices, CJ Magnuson, seated in bottom row center of photo below; and G. Barry Anderson;  standing second from right in photo below).   From a constitutional law perspective, perhaps one of the more interesting

aspects is the equal protection argument and how the Minnesota Court construed Bush v. Gore, a case on which Coleman heavily relied.  The Minnesota Supreme Court did not simply conclude that Bush v. Gore involved the unique circumstances of a presidential election, but instead spent several paragraphs distinguishing Bush v. Gore:

Coleman argues that, in Minnesota's 2008 United States Senate election,
different local election jurisdictions treated similarly situated absentee ballots differently
and that the trial court imposed a stricter standard for compliance with absentee voting
requirements than did election officials, and that those differences violate equal
protection under Bush.

The trial court concluded that Bush is distinguishable in several important respects
and, as a result, does not support Coleman‟s equal protection claim.  We agree.  In Bush,
the Supreme Court specifically noted that it was not addressing the question of “whether
local entities, in the exercise of their expertise, may develop different systems for implementing elections.”   Variations in local practices for implementing
absentee voting procedures are, at least in part, the question at issue here.  As previously
noted, the trial court here found that the disparities in application of the statutory
standards on which Coleman relies are the product of local jurisdictions‟ use of different
methods to ensure compliance with the same statutory standards; that jurisdictions
adopted policies they deemed necessary to ensure that absentee voting procedures would
be available to their residents, in accordance with statutory requirements, given the
resources available to them; and that differences in available resources, personnel,
procedures, and technology necessarily affected the procedures used by local election
officials in reviewing absentee ballots.  As we noted previously, Coleman has not
demonstrated that these findings are clearly erroneous.

Additionally, the essence of the equal protection problem addressed in Bush was
that there were no established standards under Florida statutes or provided by the state
supreme court for determining voter intent; as a result, in the recount process each county
(indeed, each recount location within a county) was left to set its own standards for
discerning voter intent.   Here, there were clear statutory standards for acceptance or rejection of absentee ballots, about which all election officials received
common training.  

Finally, the decision to be made by Florida election officials with which the
Supreme Court was concerned in Bush was voter intent—that is, for whom the ballot was
cast—as reflected on ballots already cast in the election.  In Bush, officials conducting the recount were reviewing the face of the ballot itself, creating opportunities for manipulation of the decision for political purposes.  Here, the decision at issue was whether to accept or reject absentee ballot return envelopes before they were opened, meaning that the actual votes on the ballot contained in the return envelope were not known to the election officials applying the standards.  In summary, we conclude that Bush v. Gore is not applicable and does not support Coleman‟s equal protection claim.  

For all of these reasons, we conclude that Coleman has not proven that either
election officials or the trial court violated his right to equal protection.

Opinion at 20-23 (footnotes and citations omitted).



RR

Kennedy remained the "swing" vote in the 2008-2009 Term

Kennedy's reputation as the "swing vote" on the United States Supreme Court is substantiated by his performance during the Term that concluded today.  According to the wonderfully informative "Super Stat Pack" by ScotusBlog, available here, Kennedy was in the majority 92.4% of the time in 79 opinions, and perhaps more importantly, 88.7% of the time in the 53 opinions in divided cases in which there was at least one dissenting vote.  According to ScotusBlog this is an even higher number than Kennedy's "stats" from last Term - 85.5% and 79.2% respectively.

(Just for fun, consider jotting down your own ranking of the Justices before you look at the Scotusblog stats for "frequency in the majority: Second after Kennedy?   Last at 47.2%?).

This doesn't mean that Kennedy authored the most opinions.  Indeed, according to the ScotusBlog "Final Stats," Kennedy ranks last in "Opinion Authorship" at 14 Opinions.

Given these statistics, it might be a good time to turn to a new book, The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty, by Helen J. Knowles.  

An informative review of the book is available in Law & Politics Book Review here.  The reviewer, Tobias Gibson, writes:

Knowles uses the Introduction of the book to suggest that Kennedy’s reputation of writing opinions which are “doctrinally weak” does not do justice to the Justice. Instead, the purpose of this book is “to try to identify some of the most prominent and important philosophical and legal threads that are woven into the cloth from which Justice Kennedy’s jurisprudence is cut.”  Knowles starts from the assertion that Kennedy is a “moderate libertarian.” This assertion stems from Kennedy’s avoidance of radical legal positions, coupled with his belief in diverse views and protection of human dignity.

Gibson and Knowles are both political scientists and Gibson recommends the book highly.  However, Gibson provides a good outline of the chapters (as is typical in a short review) so that readers who are law professors have information to decide whether or not the book would add to their own insights. 

RR

Ricci Firefighters Race Discrimination Case: Preliminary Analysis

In a 5-4 decision, with the Court's opinion authored by Kennedy, the majority concludes that the city of New Haven violated Title VII, reversing the Second Circuit. 

Weighing in at 93 pages, the opinion is available as pdf here.

Here is the split amongst the Justices:

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, THOMAS, and ALITO, JJ., joined.  SCALIA, J., filed a concurring opinion.  ALITO, J., filed a concurring opinion, in which SCALIA and THOMAS, JJ., joined. 

GINSBURG, J., filed a dissenting opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined.

The Court's majority opinion avoided the equal protection challenge, but the Court does seem to look to equal protection doctrine for guidance.  The Court's syllabus explains:

The Court has considered cases similar to the present litigation, but in the context of the Fourteenth Amendment’s Equal Protection Clause.  Such cases can provide helpful guidance in this statutory context.  See Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 993.  In those cases, the Court held that certain government actions to remedy past racial discrimination—actions that are themselves based on race—are constitutional only where there is a “strong basis in evidence” that the remedial actions were necessary.  Richmond v. J. A. Croson Co., 488 U. S. 469, 500; see also Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 277. In announcing the strong-basis in-evidence standard, the Wygant plurality recognized the tension between eliminating segregation and discrimination on the one hand and doing away with all governmentally imposed discrimination based on race on the other.  476 U. S., at 277. It reasoned that “[e]videntiary support for the conclusion that remedial action is warranted becomes crucial when the remedial program is challenged in court by nonminority employees.” Ibid.  The same interests are at work in the interplay between Title VII’s disparate-treatment and disparate-impact provisions.

Ginsburg, dissenting, views the importance of the Equal Protection Clause differently:

In construing Title VII, I note preliminarily, equal protection doctrine is of limited utility. The Equal Protection Clause, this Court has held, prohibits only intentional discrimination; it does not have a disparate-impact component. See Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 272 (1979); Washington v. Davis, 426 U. S. 229, 239 (1976). Title VII, in contrast, aims to eliminate all forms of employment discrimination, unintentional as well as deliberate. Until today, cf. ante, at 25; ante, p. 1 (SCALIA, J., concurring), this Court has never questioned the constitutionality of the disparate-impact component of Title VII, and for good reason.

Dissenting Opinion at 21.

The Court's opinion was eagerly anticipated, not only because of the important issue of the intersection between Title VII and the Equal Protection Clause, especially when race discrimination is raised by white plaintiffs, but because Sonia Sotomayor is one of the authors of the opinion below.

As a reminder, the Second Circuit opinion was a per curiam opinion signed by Rosemary S. Pooler, Robert D. Sack and Sonia Sotomayor, and is typically (for per curiam opinions) succinct:

Plaintiffs appeal from a judgment of the United States District Court for the District of Connecticut (Arterton, J.) granting the defendants' motion for summary judgment on all counts.

We affirm, for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. Ricci v. DeStefano, 554 F.Supp.2d 142, 2006 U.S. Dist. LEXIS 73277, 2006 WL 2828419 (D.Conn. Sept. 28, 2006). In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs' expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.

RR

"Preventative Detention Model Act": Framework for Obama?

The likelihood of an Executive Order on "indefinite detention" is being widely discussed.  For example, the Washington Post reported yesterday:

Obama administration officials, fearing a battle with Congress that could stall plans to close the U.S. prison at Guantanamo Bay, are crafting language for an executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely, according to three senior government officials with knowledge of White House deliberations.

Glenn Greenwald at salon.com here has extensive coverage with lots of links and discussion, especially focusing on criticisms of Obama's failure to keep his campaign pledges to be different from Bush.

NPR, however, has reported on a proposal "from two experts outside of government"  that "is already being discussed in the Obama administration."  The proposal is from the Brookings Institution, heralded with this opening salvo: "A consensus is beginning to emerge in the public and political spheres concerning the non-criminal detention of terrorist suspects."  The NPR story, however, has one of the two authors of the report acknowledging that " it will be controversial."

The proposal is definitely worth a look.  Entitled "Designing Detention: A Model Law for Terrorist Incapacitation," and authored by Benjamin Wittes and Colleen A. Peppard, download here, the first 27 pages is an analysis and discussion.  For scholars and policy analysists, this discussion provides an excellent overview of the controversies.

The last 10 pages - - - the Appendix - - -  is actually a model statute (or perhaps Executive Order?).  It provides from some judicial oversight, although a suspension of the rules of evidence during those hearings, and numerous other specifics.  For those teaching this summer, whether in the US or elsewhere, this proposal would make an excellent exam question. 

RR

Report concludes Sotomayor's opinions lack strong ideological bent

The Congressional Research Service- a non-partisan body providing research services to both parties and both houses of Congress - released a 59-page report (available here) on Judge Sonia Sotomayor's judicial rulings, ideology, and methodolgy. 

First, the study attempted to discern any indications of an ideological bent in Judge Sotomayor's cases.   On this issue, the study concluded that while the Judge seemed to favor plaintiffs in some cases, "[o]verall, Judge Sotomayor’s opinions defy easy categorization along ideological lines."    Moreover, on the issue of her approach to the judicial role, the report concluded that the Judge's opinions displayed "adherence to the doctrine of stare decisis," "a meticulous evaluation of the particular facts at issue in a case," "adhere[nce] to the plain meaning of the text" in matters of statutory construction, and an "apparent dislike for situations in which the court oversteps the role called for by the procedural posture of a case."  The remainder of the report catalogs and considers Judge Sotomayor's rulings in a number of areas from the First Amendment to Civil Rights to Search and Seizure issues to Executive Power.  The report then analyzes the Judge's rulings in that area for possible trends.

This report should prove to be interesting to both sides in next month's confirmation hearings.  Watch this space for updates.

NLS

Comparative Constitutional Law & Literature: Robson's Saturday Evening Review

"What is a Constitutional Epic?" Penelope Pether asks in her piece Comparative Constitutional Epics, 21 Law & Literature 16 (2009) and available on ssrn here.  Pether (pictured below) is one of the leading lights of the discipline loosely known as law and literature, but her work is uniquely devoted to constitutional theory and to comparative constitutional doctrine.  In this essay, she considers not only Robert Cover's classic article "Nomos and Narrative," but the rereading by Con Law Prof (and newly named Dean of Yale Law School) Robert Post in which Post discerns:

both Cover’s failure to register that every nomos is jurispathic of others, and his “skeptic[ism] of a jurisgenerative politics” of public reason, he does not perceive that if indeed Cover’sromantic hope is for a heteroglossic republic of nomoi, as some among Cover’s glossators
have held it to be,it is blood kin to his own students’ contemporary civic republicanism. Such is the horizon of the inheritors of the death of law, the faithful of popular Constitutionalism.

Id. at 108. 

She also trenchantly analyzes  - - - as a Constitutional Epic - - - "the massive, three-volume public version of the Report of the Events Relating to Maher Arar, produced by the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar,a Canadian national of Syrian birth who was, with the cooperation of the Canadian authorities, arrested and detained by the United States in New
York while lawfully in transit through Kennedy Airport, and “extraordinarily rendered,” to Syria, where he was imprisoned, tortured, and otherwise mistreated, even though, as the Commissioner reported, 'there is nothing to indicate that Mr. Arar committed an offense or that his activities constitute a threat to the activities of Canada.' "  Id. at 114.  She reads this Report against the United States Supreme Court's opinion in Arar v. Ascroft.  And in the Australian context, she reads Bringing Them Home, the Report of the Australian Human Rights and Opportunity Commission’s National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, in conjunction with the Australia High Court's judgment in Kruger v. Commonwealth (The Stolen Generations case).  In both instances, the "positivist" and narrow interpretations of constitutional law, she argues, are undermined by what she terms the "factions" of the reports.

Pether's discussion of these reports made me a bit less cynical about government reports and made me contemplate the ability of these documents to become "constitutional epics."  As we ponder the Obama Administration's response to what might be broadly named the "torture memos controversies," Pether's arguments are worth considering.  If, as she writes, "constitutional epics" express the range of our constitutional commitments, then surely they are grounds for generating profound insights about constitutional law.

RR

Judge Sotomayor as a Change Agent on the Court?

Shortly after Justice Souter announced his retirement, I opined that if President Obama wanted to change the Court quickly, he should "find a nominee . . . that not only shares Obama's legal views and philosophy, but can also convice Justice Kennedy of the correctness of these positions."  The idea was that since Justice Kennedy is the perennial "swing vote," a person that could influence him would have a great deal of influence on the Court. 

Could Judge Sotomayor be that person?  

Recent media reports have provided information that may be helpful in predicting the impact the nominee will have if confirmed.  McClatchy newspapers posted an article entitled, "Sotomayor's take-no-guff demeanor could alter Court dynamics."  Her colleauge, Judge Guido Calabresi, remarked that Judge Sotomayor is a "'wonderful colleague' who doesn't mince words. He said she had 'in a not insignificant number of cases changed my mind . . . both by charm, but mainly by the force of her legal argument.'"  

Over at Slate, Emily Bazelon began her post by suggesting that Judge Sotomayor's effectiveness will be determined by her ability to influence her more conservative colleagues, particularly Justice Kennedy, to side with her in important votes.  Bazelon chronicles a case - Jocks v. Tavernier - wherein Judge Sotomayor convinced the other judges on the panel to see her point of view and to eventually side with an off-duty police officer.   Bazelon's analysis of the case concludes, "I'm consistently hearing that Sotomayor is forceful and assertive and plays well with her colleagues."

A final article talks about what Judge Sotomayor might bring to the bench as a Latina.  The New York Times' Adam Litpak authored an article about how those in the minority affect the Court's deliberations.  He quotes Justice Scalia as stating that Justice Thurgood Marshall "wouldn’t have to open his mouth to affect the nature of the conference and how seriously the conference would take matters of race.”  Justice O'Connor also stated that Justice Marshall was “constantly pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth.”   Moreover, Professor Mark Tushnet was quoted as saying that Justice O'Connor's very appearance at the Court "affect[ed] the way other justices responded.”

What does this mean for the deliberations that Judge Sotomayor will enter if confirmed? It could mean everything, or it could mean very little.  It could mean everything because if Judge Sotomayor is able to persuade her Supreme Court colleagues in the same manner in which she influenced her peers on the Second Circuit, she will certainly be a force to be reckoned with on First Street. If she brings the same skills from New York, we must assume that she will have a chance to alter the 5-4 dymanic in her favor.   However, her presence could bring very little change as well.  The NYT article also goes on to note that while Justice O'Connor acknowledged Justice Marshall's persuasive abilities, she rarely voted with him in civil rights cases.  Despite the presence of a woman on the Court since 1981, Justice Ginsberg was quoted in the NYT article as feeling at times that her points are not heard until someone else makes them.  

Of course, we won't know the extent of Judge Sotomayor's persusive skills until she is confirmed and has been in conference with the other Justices for at least a term.  But one thing is certain - a new justice will change the dynamic of the Court in some fashion.  The only variables are the extent of the change and the contexts in which it may occur.  

Assuming confirmation, this will be the story to watch over the 2010 term.  As always, we'll keep you posted. 

NLS 

Fourth Circuit Upholds Virginia "partial-birth" abortion ban

In an en banc decision, the Fourth Circuit vacates its earlier panel decision and a district court decision concluding the Virginia state law was unconstitutional.  In Richmond Medical Center for Women [and Dr. William Fitzhigh] v. Herring, decided today, full opinion available as pdf here, the en banc court stated:

We now conclude that insofar as Dr. Fitzhugh mounts a
facial challenge against the Virginia Act, the challenge fails
because
(1) Dr. Fitzhugh’s posited circumstance does not
present a sufficiently frequent circumstance to render the Vir-
ginia Act wholly unconstitutional for all circumstances;
(2)  the Virginia Act’s scienter language, although different from
the Federal Act, nonetheless provides sufficient notice to a
reasonable doctor of what conduct is prohibited by the statute;
and
(3) the provisions for a safe harbor and affirmative
defenses, as well as the requirement of "an overt act," ensure
that the Virginia Act will not create a barrier to, or have a
chilling effect on, a woman’s right to have a standard D&E
or her physician’s ability to undertake that procedure without
fear of criminal liability.

The court also rejected the as-applied challenge because Fitzhugh "has not presented sufficiently concrete circumstances in which the as- applied challenge can be resolved, recognizing that '[t]he Act is open to a proper as-applied challenge in a discrete case,' "  quoting Gonzales v. Carhart, 550 U.S. at 168.

The court's discussion of the facial challenge, citing Marbury v. Madison, is relevant far beyond the reproductive rights context.  Certainly, however, the limitation of facial challenges has been quite vigorous in the abortion context of late.  Note also that the Virginia statute here, entitled the "Partial Birth Infanticide" Act, Va. CodeAnn. § 18.2-71.1(A)-(C), applies "regardless of the duration of pregnancy."

The twenty-five page dissenting opinion by Judge M Blane Michael (pictured left)
argues that the court is departing from Gonzales v. Carhart, "and long- standing precedent explicitly reaffirmed in that case hold that the Constitution protects a woman’s right to choose the standard dilation and evacuation (D&E) procedure employed in the vast majority of pre-viability second trimester abortions. The Virginia Act violates the Constitution because it exposes all doctors who perform the standard D&E to prosecution, conviction, and punishment. The Act does this by imposing criminal liability on any doctor who sets out to perform a standard D&E that by accident becomes an intact D&E." (emphasis in original).



RR