Saturday, March 7, 2009

Judicial Recusal and Judicial Bias: Saturday Evening Review

As noted previously, on Tuesday SCOTUS heard oral arguments in Caperton v.  A.T. Massey Coal Co., on the question of whether the refusal of Justice Benjamin of the Supreme Court of Appeals of West Virginia to recuse himself from the appeal of a large jury verdict against a party who spent $3 million supporting Benjamin's campaign (more than 60% of the total amount spent) violated the Due Process Clause of the Fourteenth Amendment. 

Post argument, there is  much commentary, including an excellent piece by NPR here, noting that former- Justice O'Connor was in the courtroom, and reminding listeners of the similarity of the plot to John Grisham's novel THE APPEAL (NYT review here).

An especially interesting colloquy occurred early in oral argument with Justice Scalia asking Theodore Olsen, who was arguing that the judicial bias in this case was extreme:

SCALIA:   . . . . I was appointed to the bench by Ronald
Reagan. Should I be any -- should I have been any less
grateful to Ronald Reagan than -- than the judge here
was grateful to the person who spent a lot of money in
his election?

(Transcript at 11).
Olsen replied that

-- there is a significant difference with respect to the
framers of the Constitution who gave the members of this
Court and the Federal Judiciary life tenure for the very
purpose of ensuring the independence of the judiciary.
There is a separate consideration that this Court has
mentioned because of the fact that judges and justices
of this Court cannot be replaced if they feel that they
must recuse themselves. There is -- another interest is
institutionally presidents appointing justices all of
the time for a variety of reasons, but not to attempt to
affect the outcome in their case.

(Transcript at 13).  The framing of the problem as limited to financial contributes attributable to the election of judges is an interesting and obvious one - - - and the NYT editorial here also takes this view. 

Yet the issue of "judicial bias" is not so narrow, as the scholarship of Professor Reg Graycar - - - a shining star of the University of Sydney (Australia) Law Faculty - - - has discussed in several articles covering controversies in many jurisdictions. 

R_graycar_2 Graycar focuses on how persons who have not traditionally been judges are often perceived as biased.  In her newest piece on the subject, Gender, Race, Bias and Perspective: OR, How Otherness Colours Your Judgment, 15 International Journal of the Legal Profession 73 (2008), Graycar analyzes many requests for judges to recuse themselves based upon an argument that they cannot be fair or unbiased because of their gender or race.

In an earlier article, The Gender of Judgments: Some Reflections on Bias, 32 University of British Columbia Law Review 1 (1998), Graycar draws attention to a disturbing accusation of bias:

In 1990 Madame Justice Bertha Wilson, while a member of the Supreme Court of Canada, gave a speech entitled: "Will Women Judges Really Make a Difference?" In the course of her speech, dealing with the notions of bias and neutrality, she stated:

If women lawyers and women judges through their differing perspectives on life can bring a new humanity to bear on the decision-making process, perhaps they will make a difference. Perhaps they will succeed in infusing the law with an understanding of what it means to be fully human.

There was enormous publicity about her speech including a complaint to the Judicial Council and calls for her resignation on the grounds that she was "biased." The argument here seemed to be that by her mere suggestion that women on the bench might make a difference, Justice Wilson was "playing politics and not being impartial."

Id. at 8.  Surely this is not what we can argue is bias?  Or at least sufficient bias to constitute a denial of due process? 

Nevertheless, if we take Graycar's arguments seriously that allegations of bias will themselves be biased - - - as I think we must - - - then where does that leave us with Justice Benjamin's bias based on taking three million dollars for his election campaign from a man whose case he would rule upon? 

Or perhaps some of the difficulty is perceiving Benjamin as biased when his race and gender raise the presumption that he is neutral? 


March 7, 2009 in Cases and Case Materials, Comparative Constitutionalism, Due Process (Substantive), Fourteenth Amendment, News | Permalink | Comments (0) | TrackBack (0)

Friday, March 6, 2009

Court Vacates Fourth Circuit, Orders Dismissal in Al-Marri

The Supreme Court on Friday vacated the Fourth Circuit opinion in Al-Marri v. Spagone and remanded the case with instructions to dismiss the appeal as moot after the government indicted al-Marri last week in federal court. 

Recall that the Fourth Circuit ruled that the administration had authority under the Authorization for Use of Military Force to indefinitely detain al-Marri, a lawful U.S. resident, as an enemy combatant in the United States.  (The Fourth Circuit did not rule on the Bush administration's claim that the executive possessed inherent authority, irrespective of the AUMF, as commander in chief.) 

Al-Marri appealed to the Supreme Court.

Then just last week, the Obama administration indicted al-Marri in federal court, moving him from indefinite military custody to the Article III system.  Al-Marri and the administration filed briefs on whether this move mooted the case:  Al-Marri argued no; the administration argued yes.  But both argued in the alternative that the Court should vacate the lower court decision and instruct it to dismiss the appeal as moot.  (My post, with links to briefs, is here.)

The Court's order means that the Fourth Circuit ruling is no longer good law.  And the Obama administration's alternative argument--that the Court should vacate the Fourth Circuit--suggests that this administration does not believe that the AUMF (let alone inherent executive authority) authorizes the President to indefinitely detain a lawful U.S. resident as an enemy combatant in the United States.


March 6, 2009 in Executive Authority, Recent Cases, War Powers | Permalink | Comments (0) | TrackBack (0)

The Teaching Assistant

Hello all!  After a brief hiatus, we are back with a number of stories on Equal Protection and Fundamental Rights, plus one bonus story. 

Here are this week's equal protection/fundamental rights stories:

The ACLU blog contains a first hand account of a female member of the New York State National Guard.  The challenged policy required that female soliders take mandatory pregnancy tests every three months or resign from the Guard.  The good news is that the policy was changed.  The bad news is that even under the new policy, pregnant soldiers are likely to be dismissed from the Guard while pregnancy.

Feministe reports that the National Women's Law Center, while happy about the passage of the Lilly Ledbetter Fair Pay Act, is still pushing for the companion legislation, the Paycheck Fairness Act.  More information can be found on the bill here

The American Constitution Society reports that legislation has been introduced in Oklahoma that would require the removal of any and all headgear - including religious headgear - prior to taking a driver's license photo.   Members of religious organizations, including Muslims and Sihks, are objecting to the law.

Finally, in executive branch news, Liza Gottein of the Brennan Center for Justice has an interesting essay on the merits of investigating the prior administration.  She distinguishes between prosecuting mere policy argreements and prosecuting law breaking.  She states:

Policy differences are a natural part of political life in this country, and we must tolerate them. Unlawful conduct by government officials, however, must never be tolerated. We currently face a real risk that recent unlawful activities will come to be viewed as mere policy preferences, due to political pressures against doing what is necessary to learn the truth. Such a result—not the criminalization of policy differences, but the politicization of unlawful conduct—would be an affront to the rule of law.

That's all for next week.  See you next time!

March 6, 2009 | Permalink | Comments (0) | TrackBack (0)

Line-Item Veto Legislation in House, Senate

Senator Russ Feingold (D-WI), Senator John McCain (R-AZ), and Representative Paul Ryan (R-WI) have introduced line-item veto legislation that purports to solve the constitutional problems in the 1996 Line Item Veto Act overturned in Clinton v. New York. The press release is here; the bill is here.

Recall that the 1996 Line Item Veto Act authorized the President to sign spending legislation, but at the same time cancel any line item within it.  The cancellation took effect upon receipt by Congress.  Congress could override to restore the original lines, but without override the President would have unilaterally amended the legislation and would have signed different legislation than the Congress passed.  The Court thus overturned the Act.

This new bill would allow the President, after signing legislation containing any earmark, tariff benefit, or targeted tax benefit, to issue a "proposed cancellation" of certain items and to withhold an obligation of those items for 45 days.  Unlike the 1996 line-item veto, the proposed cancellation does not alter the legislation; it merely prompts new Congressional action.  Congress would then pass new legislation (in effect, and with certain restrictions) effecting the President's proposed cancellations.  Under the bill, then, the President signs the same legislation--both the original legislation and the new legislation prompted by the proposed cancellation--that Congress enacts.  Thus the Feingold-McCain-Ryan bill purports to navigate Clinton v. New York.


March 6, 2009 in Congressional Authority, Executive Authority, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, March 5, 2009

Proposition 8 Constitutional? Arguments in California Supreme Court today


Today, the California Supreme Court heard a three hour argument in Strauss v. Horton, the challenge to Proposition 8's constitutionality.   We've previously blogged about the issues here and here, including a report of the two panels held at AALS in San Diego in early January.

One of the best recaps of the argument I've read so far has been from Josh Richman of the Oakland Tribune on [San Jose] here.   The National Center for Lesbian Rights had a blog with minute-by-minute descriptions of the argument starting here.  The California Channel should have streaming video here, but I’ve found it difficult to access. 

The California Supreme Court described the three issues it would hear in today's oral argument as:

(1) Is Proposition 8 invalid because it constitutes a revision of, rather than an amendment to, the California Constitution?
(2) Does Proposition 8 violate the separation of powers doctrine under the California Constitution?
(3) If Proposition 8 is not unconstitutional, what is its effect, if any, on the marriages of same-sex couples performed before the adoption of Proposition 8?

The issue of whether Proposition 8 is an amendment (and thus a referendum is proper) or a revision (and thus requiring 2/3 vote of the California legislature, or a constitutional convention) implicates one’s views of the right at stake.   According to the NCLR argument blogger, Chief Justice George “immediately” asked Shannon Minter, arguing for NCLR, whether Proposition 8 overturned the court’s holding in In re Marriage Cases that Sexual orientation was subject to strict scrutiny; Justice Wergerder then followed with a question assuming that if strict scrutiny was not affected, why was Proposition 8 significant enough to be a revision.   Minter’s answer referred to the “existing purposes and principles” of the California Constitution.  Of course, it is these very purposes and principles about which the parties - - -  and the thousands of activists on both sides of this issue - - - so vehemently disagree.

For one side, equality is not a discrete right, but an animating principle of the Constiution.

On the other side, as described by Josh Richman:

Pepperdine Law School Dean Kenneth Starr — best known for his role as a special prosecutor investigating various activities of President Bill Clinton — argued for Proposition 8's proponents that the people's right to change the constitution as they see fit amounts to "sovereignty," and an "inalienable" right "cannot be taken away except with the appropriate process."

Starr said the court's own precedents say a constitutional revision is necessary only for changes to government's basic structure, and to require revisions to alter or limit individual rights would be "an unprecedented revolution in this court's jurisprudence."

"Under our theory, the people are sovereign and can do even very unwise things that tug at the equality principle," he argued, acknowledging the constitution is meant to protect minority rights but many exceptions have been carved out over time. All Proposition 8 does, he said, is restore the traditional definition of marriage to a longstanding status quo.

"Rights are important, but they don't go to structure," he said. "Rights are ultimately defined by the people."

While Kenneth Starr was the only advocate arguing that Proposition 8 was constitutional, the opposing side had several parties and advocates in addition to Shannon Minter: Therese M. Stewart on behalf of the City and County of San Francisco; Michael Maroko on behalf of the Tyler Petitioners;  Raymond C. Marshall of Bingham McCutchen on behalf of various amici (Asian Pacific American Legal Center, the California State Conference of the NAACP, Equal Justice Society, Mexican American Legal Defense and Education Fund, the NAACP Legal Defense and Education Fund, Inc.), and The State of California, represented by Christopher Krueger of the Attorney General’s office.

The retroactivity argument was interwoven throughout the other arguments at times - - - and has the potential to cause an odd constitutional and practical situation.  If the court decides that proposition 8 is not retroactive, then California will have to recognize the same-sex marriages that occurred before  Proposition 8 was passed.

The California Supreme Court is required to rule in 90 days. 


March 5, 2009 in Comparative Constitutionalism, Equal Protection, Family, Fundamental Rights, Gender, News, Sexual Orientation, Sexuality | Permalink | Comments (1) | TrackBack (0)

Senate Judiciary Committee Holds Hearing on Commission of Inquiry

The Senate Judiciary Committee yesterday held its hearing on "Getting to the Truth Through a Nonpartisan Commission of Inquiry."  Witness testimony and a webcast link are here.

Here's from Chairman Leahy's opening statement:

There are some who resist any effort to look back [on Bush administration practices in the war on terror] at all, while others are fixated on prosecution, even if it takes all of the next eight years, or more, and further divides this country.

Over the last month, I have suggested a middle ground to get to the truth of what went on during the last several years, in a way that invites cooperation.  I believe that that might best be accomplished through a nonpartisan commission of inquiry.  I would like to see this done in a manner removed from partisan politics.  Such a commission of inquiry would shed light on what mistakes were made so that we can learn from these errors and not repeat them.

Today's hearing is to explore that possibility.  I am encouraged that many have already embraced this idea, including several of the distinguished witnesses I welcome today.

With all the focus on the Bush administration and its officials, I hope any commission will also examine Congress's role.


March 5, 2009 in Congressional Authority | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 4, 2009

Yoo's perspective on the OLC "torture" memos

John Yoo, author of some of the just-released OLC memos from the Bush Administration (see our blog here)  has this to say about the memos:

These memos I wrote were not for public consumption. They lack a certain polish, I think – would have been better to explain government policy rather than try to give unvarnished, straight-talk legal advice. I certainly would have done that differently, but I don't think I would have made the basic decisions differently.

This is from an interview with OC Register published yesterday.  Yoo is on leave from UC-Berkeley (Boalt Hall) and is now a visiting professor at Chapman University School of Law, located in Orange County.  The interview is really worth reading in full - - - look for the mentions of "hippies" and "Kobe Bryant" amidst the more serious constitutional considerations.   For Yoo's recent editorial ""Obama Made a Rash decision on Gitmo" in the Washington Post (see our blog here). 


March 4, 2009 in Executive Authority, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Rove and Miers to testify before Congress

Karl_rove_at_podium The New York Times, amongst others, reporting:

Karl Rove, the top adviser to former President Bush, and Harriet Miers, a former White House counsel in the previous administration, have agreed to give testimony to the House Judiciary Committee in its investigation of firings of US Attorneys. . . .


March 4, 2009 in News | Permalink | Comments (0) | TrackBack (0)

Court Rules No Preemption In Wyeth v. Levine

The Supreme Court ruled (6-3) today in Wyeth v. Levine that FDA regulations did not preempt a Vermont jury's tort verdict for the plaintiff based on an inadequate label warning.  I previously posted on the case here, and on related issues here and here.

Justice Steven's majority opinion rejected both of Wyeth's preemption claims.  As to conflict preemption, the Court ruled that the state tort verdict setting a standard for drug labelling higher than FDA's requirement for Wyeth did not conflict with federal law and FDA regulations, because FDA regulations include a provision--the "changes being effected" provision--that permits a drug manufacture to add to or strengthen its label without waiting for FDA approval.  Here, Wyeth could have changed its label under the CBE based on information of the drug's effects that it compiled since the drug came on the market.  (This included 20 incidents in which injections of the drug resulted in gangrene and amputation, the same harm suffered by the plaintiff in this case.)  Thus Wyeth could have complied with both the federal regulations and the standard of care set by the state jury.

As to Wyeth's claim that the state tort verdict undermined the purposes and objectives of the FDA labelling regulation, the Court simply found no evidence of contrary purposes and objectives.  In fact, just the opposite:

Wyeth contends that the FDCA establishes both a floor and a ceiling for drug regulation: Once the FDA has approved a drug's label, a state-law verdict may not deem the label inadequate, regardless of whether there is any evidence that the FDA has considered the stronger warning at issue.  The most glaring problem with this argument is that all evidence of Congress' purposes is to the contrary.

The Court gave little weight to the agency's bald (and late) assertion that state tort verdicts would undermine its purposes and objectives and the agency's under-the-radar assertion that its regs preempt.  (Recall that the FDA slipped a preemption provision into its regulatory preamble without notice and comment opportunities and after it previously proposed the rule stating that it would "not contain policies that have federalism implications or that preempt State law."  The majority wrote that the FDA's "views on state law are inherently suspect in light of this procedural failure.")

Justice Alito's dissent (joined by Chief Justice Roberts and Justice Scalia) argued that this case was no different than Geier v. American Honda Motor Co. in which the Court held that DOT regs providing automakers with a choice of a range of passive restraint devices preempted a state jury verdict.  The defendant opted for seatbelts (one option), but the state jury ruled that the defendant had a duty to install airbags (another option).  If DOT regs preempted the state jury verdict in that case, FDA regs should preempt here.  (The majority distinguished Geier:  That case was based on a "specific agency regulation bearing the force of law"; Wyeth was not.)

The majority opinion tightens preemption standards in several ways--four, according to Justice Alito.  Thus the majority ruled that anything less than complete conflict--here, Vermont mandating a particular label--does not give rise to a conflict with the regs, even though the Court had previously held that any state intrusion upon federal law creates a conflict for preemption purposes.  The majority ruled that the regs did not conflict in part because the FDA articulated its preemptive effect without notice and comment rule-making; but this is contrary to the plain holding in Geier.  The majority also applied the presumption against preemption to a conflict preemption claim, even though the Court had rejected this position in Geier.  Finally, the majority declined to give any weight to the FDA's explanation.  (Justice Alito also faulted the majority for declining to treat the regulatory preamble as authoritative law for preemption purposes.) 

The opinion will mean that regulatory agencies must do more to show that federal regulations preempt standards set in state tort claims.  It's not enough for an agency merely to say that regulations preempt, especially when the saying so goes under the regulatory radar, and when it cuts against the agency's prior positions and Congressional purposes.  Moreover, regs like the CBE provision--which permit but do not require more protective action on the part of those regulated--will provide strong fodder for state tort plaintiffs that the federal regulatory scheme does not preempt state standards.


March 4, 2009 | Permalink | Comments (0) | TrackBack (0)

Debunking Abortion Talking Points

Earlier this week, I read an article stating that Alaska Governor Sarah Palin was poised to sign a bill requiring parental notification when minors recieve abortions.  It did not seem particularly newsworthy to me at the time - the law as it stands contains a judicial bypass provision, and the Court has ruled on both consent and notification.  One part of the article struck me, however.  In support of the act, a state legislator stated, "'You want an aspirin, you want to go on a field trip, you need parental consent to do this. This is the only area, because of the constitutional struggle, that we come down to where the parent has no right . . . I so disagree with that."   I let the idea rest until later that evening when I encountered a piece that repeated the same phrase word for word.  At that point, it occured to me that this is a talking point.  Indeed, if you google the words "consent aspirin field trip abortion" you will see that this chestnut is frequently invoked in support of these laws.  So, I devote this post to debunking the talking point with a point by point critique.

First, the legal points.  While the legislator at least recognizes the "constitutional struggle," the constitutional issue is rarely mentioned by others and almost never discussed.  Legislators on these topics (and parents) may wish to believe that a person's constitutional rights begin when that person reaches the age of majority.  This is simply not true.  Minors have a First Amendment right to engage in free speech.  Minors have a Fourth Amendment right to be free of unreasonable searches on school grounds.  The Supreme Court decided that since minors do possess Constitutional rights in these areas, it would be unfair and inconsistent to hold that minors do not have a right to privacy under the due process clause of the Fourteenth Amendment.  Thus, the Supreme Court is merely being consistent in holding that minors possess the same consitutional freedoms as adults.

Now, some may say, "Yes, but this is different!  This is an abortion!"  Parents want to feel that their children will not be having sex and getting pregnant behind their backs.  They'd like to know the facts, presumably to help.  However, this does not mean that all parents want to help.  Some children could be victims of chlid abuse and reasonably fear that their parents will abuse them physically or psychologically if they reveal their sexual activities.   If the child is a victim of incest, the parent may also be the grandparent, and as horrific as that may be it does happen. The Court seemed to be sensitive to these factors when it ruled.  Moreover, there is a wisdom in the Court's decision that even anti-choice advocates should appreciate.  If the Court had ruled that a parent had the unchecked ability to consent to an abortion, the necessary corrollary to such a ruling would have been that a parent also had an unchecked right to require a minor to have an abortion.  I'm sure that ruling would not be favorable to anyone.

Now, onto the non-legal arguments. First, a field trip is in no way similar factually or legally to abortion or contraception.  A field trip is not a medical procedure of any type, so it's a false analogy.  Schools require children to get permission slips for field trips and sports and other activities so the school will not incur liability if a child is injured.  It's a way for the school to argue - "Hey, it's not my fault your kid got hurt playing dodgeball- you knew the risks and you said 'okay.'"  There is no similar issue with respect to abortion.  If a judge determines the minor is mature enough for the procedure, then that means she is mature enough to understand the risks and consent to them unaided by an adult.  So, that is an entirely different issue.

Second, the aspirin argument seems closer because administering medicine has a medical component.  However, the aspirin argument is not true - at least not totally true.  While it is the case that parental consent is required for medical treatment of a minor in many states, nearly as many states will allow a minor of a certain age to consent to a medical procedure.  In some states, a child can consent to general medical care - even surgical care - as young as age 14.  (For a detailed report, see here.)  If this is true, then why require the parental permission slip for the nurse's office?  The same reason the schools require parental consent prior to the field trip - to avoid liability.  If little Karla or Khalil is allergic to aspirin, they don't want to administer the medication without that knowledge.  So, this assertion is also not what it seems. 

In sum, the point is while this line is oft repeated, it is not fully accurate.  As is frequently the case, there is more the matter once one scratches the surface beneath the soundbite. 

March 4, 2009 | Permalink | Comments (1) | TrackBack (0)

Tuesday, March 3, 2009

Al Marri Opposes Dismissal at Supreme Court

Attorneys for Ali Saleh al Marri yesterday filed a brief opposing the government's motion to dismiss the case as moot.  Recall that the administration indicted al Marri last week in federal court, thus (it argued) mooting the case at the Court.  The indictment is here.  Thanks to the ACLU for posting these and other documents in the case.

Al Marri is the lawful U.S. resident detained in the U.S. by the Bush administration as an enemy combatant and held indefinitely in military detention within the U.S. 

Al Marri's attorneys argued that the case meets the capable-of-repetition-but-evading-review exception to the mootness doctrine under Article III and Friends of the Earth v. Laidlaw.  That doctrine holds that a case is not moot if, as the doctrine's name suggests, a controversy is capable of repetition but evades review.  (Cases challenging restrictions on abortions may be the clearest example.)  Al Marri also argues that prudential concerns also counsel in favor of review, so as to avoid another Padilla situation.  (Recall that the government got a favorable Fourth Circuit decision in Padilla v. Hanft and then transferred Padilla out of military custody before the Court could consider a cert. petition.  The Court ultimately denied cert., Justice Kennedy concurring and Justice Ginsburg dissenting.)  The difference in procedural posture between the two cases:  The Court already accepted cert. and put al Marri on the OT08 calendar.

Al Marri's attorneys obviously would like the Court to overturn the Fourth Circuit's ruling.  The Obama administration in arguing for dismissal did not reject the Fourth Circuit's ruling or disclaim its power to detain al Marri; instead it argued only that al Marri doesn't satisfy the mootness exception.  (Thanks to SCOTUSblog for posting the administration's motion.)  But both parties argued in the alternative that the Court should vacate the Fourth Circuit ruling and remand with instructions to dismiss the case as moot.  This is the cleanest way to take the Fourth Circuit ruling off the books and get rid of the case--probably the most appealing option for the Court.


March 3, 2009 in Executive Authority, Recent Cases, War Powers | Permalink | Comments (0) | TrackBack (0)

Court Denies Standing in Summers v. Earth Island Institute

The Supreme Court today issued a sharply divided (5-4) opinion holding that respondents lacked standing to challenge U.S. Forest Service regulations exempting the Service from notice, comment, and appeal processes for fire-rehabilitation and salvage-timber sales that the Service itself determined would not produce a significant environmental impact.  I previously posted on the case here.

Respondent organizations argued that the regulations violated federal law requiring the Service to "establish a notice and comment process" and a procedure for filing an administrative appeal for "proposed actions . . . concerning projects and activities implementing land and resource management plans . . . ."  The federal law does not include an exception--or a delegation to exempt--projects that do not produce a significant environmental impact; the Service unilaterally wrote the exception into its regs.

Justice Scalia wrote for himself, Chief Justice Roberts, and Justices Kennedy, Thomas, and Alito that respondent organizations lacked standing as to a particular exempted project--the Burnt Ridge Project, a salvage timber sale on 238 acres damaged by fire--because the parties had settled that case:

We know of no precedent for the proposition that when a plaintiff has sued to challenge the lawfulness of certain action or threatened action but has settled that suit, he retains standing to challenge the basis for that action (here, the regulation in the abstract), apart from any concrete application that threatens imminent harm to his interests.  Such a holding would fly in the face of Article III's injury-in-fact requirement.

The majority was no more persuaded by the respondents' standing claim based on future injury.  Justice Scalia wrote that the respondents failed to claim an imminent harm:

This vague desire to return [to the forested area] is insufficient to satisfy the requirement of imminent injury: "Such 'some day' intentions--without any description of concrete plans, or indeed any specification of when the some day will be--do not support a finding of the 'actual or imminent' injury that our cases require."

Respondents' uncontroverted claims about its membership and the Service's regulations on them fell flat:  Justice Scalia wrote that the Court has an "independent obligation to assure that standing exists, regardless of whether it is challenged by any of the parties."

Justice Breyer wrote in dissent for himself and Justices Stevens, Souter, and Ginsburg that the respondents had pleaded plenty sufficient facts to allege a "realistic likelihood" of future harm.

The case will make it easier for agencies to dodge judicial review of illegal regulations simply by settling cases, thus putting plaintiffs in a particularly difficult position:  To win the immediate case, they have to settle; but to settle means losing the larger claim.  And the tight standing requirements--"imminent" not "realistic likelihood" of harm, and judicial skepticism of groups' uncontroverted assertions about the size and scope of, and harm to, their own memberships--will make it tougher for groups like Earth Island Institute to get federal court attention for their claims.


March 3, 2009 in Standing | Permalink | Comments (1) | TrackBack (0)

DOMA section 3 Challenge Filed

120pxwikiwed Section 3 of DOMA, the Defense of Marriage Act [codified at 1 USC 1] provides that

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word “marriage” means only a legal union between one man and one woman as husband and wife, and the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.

Gay & Lesbian Advocates & Defenders (GLAD) filed a 92 page complaint today in the US District Court for Massachusetts.  Same-sex marriage has been recognized as a matter of state law in Massachusetts since the state’s highest court decided Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003).

The lawsuit has fifteen plaintiffs, residents of Massachusetts, alleging that DOMA section 3 violates their Fifth Amendment rights to equal protection.  The Complaint has 13 counts, each of which contain language similar to this paragraph (number 350 in Count I):

To the extent that the disparity of treatment with regard to federal employment-related benefits available to Nancy and Marcelle is, in fact, mandated by DOMA, 1 U.S.C. § 7, that disparity of treatment creates a classification that treats similarly-situated individuals differently without justification in excess of Congressional authority in violation of the right of equal protection secured by the Fifth Amendment of the Constitution of the United States.

Counts 1 – 3 are related to federal employee health benefits, counts 4-9 are related to IRS determinations, counts 10-12 are related to Social Security benefits, and count 13 concerns the State Department’s passport policies.    The GLAD website includes a video, DOMA background information, a brief synopsis of the legal arguments and a discussion of the decision to seek a judicial remedy rather than a legislative one through Congress.

This complaint and its accompanying materials could provide an excellent short simulation in class or the foundation for a student project.


March 3, 2009 in Equal Protection, Family, News, Sexual Orientation, Sexuality | Permalink | Comments (1) | TrackBack (0)

Monday, March 2, 2009

Judicial Recusal and the Due Process Clause

Is there a right under the Due Process Clause of the Fourteenth Amendment to have a seemingly impartial judge?


Or, as the question in Caperton v.  A.T. Massey Coal Co., to be argued before the United States Supreme Court on Tuesday, March 3 describes the issue:

Justice Brent Benjamin of the Supreme Court of Appeals of West Virginia refused to recuse himself from the appeal of the $50 million jury verdict in this case, even though the CEO of the lead defendant spent $3 million supporting his campaign for a seat on the court--more than 60% of the total amount spent to support Justice Benjamin's campaign-- while preparing to appeal the verdict against his company.  After winning election to the court, Justice Benjamin cast the deciding vote in the court's 3-2 decision overturning that verdict. The question presented is whether Justice Benjamin's failure to recuse himself from participation in his principal financial supporter's case violated the Due Process Clause of the Fourteenth Amendment.

There is a good analysis and access to the briefs at the Scotus Wiki for the case here.    There are a number of amicus briefs including briefs from various judges, some supporting the Petitioner and others the Respondent.  The ABA has filed an amicus in support of the Petitioner (arguing that there is a due process right) while Con Law Profs Ronald Rotunda (of Chapman U School of Law) and Michael Dimino (visiting at FSU College of Law) filed an amicus brief  arguing that the Court should reaffirm the traditional rule that "due process requires the drastic remedy of recusal only when the traditional prohibition that Blackstone and Coke described – that a judge cannot sit on his own case –applies."

The oral argument should be revelatory, not only about this case, but concerning views of judicial propriety.


March 2, 2009 in Cases and Case Materials, Due Process (Substantive), Fourteenth Amendment, News | Permalink | Comments (0) | TrackBack (0)

D.C. Voting Rights Bill . . . Let's Get Ready to Rumble!

Pursuant to yesterday's post, here is some commentary about the coming battle over the D.C. Voting Rights Bill.  First, I must say I thought that the blawgosphere would be all over this one, but it's been fairly quiet compared to the rash of posts generated by the announcement of the legislation.  Somewhat predictably, the WSJ argues that the law is unconstitutional.  (And further laments the fact that the District would gain a permanent House seat, while the Utah seat will be limited to two years).  NPR has an interview with two great law professors - Jamin Raskin of American University and Johnathan Turley of George Washington University.    Professor Raskin - one of the leading scholars on this issue - argues that since the District is treated like a state for so many purposes, it makes little sense to exempt its residents from the most basic rights of self-governance.  Professor Turley does not beleive that the law will pass constitutional muster.  Further, he states:  "For constitutional scholars, this bill is like watching a very slow car crash happen, where Congress is ignoring all the constitutional signs that this is not an avenue for receiving this time of relief."

With respect to the legal issue, I couldn't agree with Professor Raskin more.  As I have stated, I believe there are any number of prinicpled arguments that could be made in support of the act.  With respect to the political issue, I couldn't agree more with Professor Turley - this law is headed for the Supreme Court faster than you can say "Marbury."   It's so evitiable that the drafters included a provision in the law requesting expedited judicial review.  All parties involved know what's coming.

So, what will each opponent bring to the ring?  As I previously argued in this space, the proponents of the legislation can persuasively argue that the equal protection guarantees of the due process clause supercede the previous clause denying voting rights to the District of Columbia.  But what about the other side?  My guess is that they will rely heavily on the text, as most of the prior commentary suggests.  However, there is helpful precedent as well.  The most apposite case is likely Clinton v. New York, the 1998 case wherein the Court held that the Congress could not expand the president's power beyond that in the Constitution, even if both branches agreed the expansion was useful and necessary.   The Court employed a fairly textualist approach (critiqued by Justice Breyer's dissent), and it would not take much creativity to argue that the same logic applies - if the Constitution doesn't provide for it, it cannot happen without a consitutional amendment. 

No matter what the Supreme Court holds, District residents from Cleveland Park to L'Enfant Plaza are no doubt cheered.  Regardless of the outcome, this is a "win-win" for D.C.  If they win at the Court, the rights are theirs.  If they lose, the stage is set to push for the Constitutional Amendment that is so desparately needed.  And really, what would the campaign against such an amendment look like - "We've always excluded these people from voting even though the people who wrote the Constitution acknowledged it was a mistake so let's keep the mistake going for old time's sake?"  Not the best political argument to be making, especially when you compare it to the other side's potentially powerful and compelling logical, emotional, and patriotic arguments. 

I for one can't wait for this showdown.  I'll keep you posted, and save you a ringside seat.


March 2, 2009 | Permalink | Comments (0) | TrackBack (0)

Obama DOJ Releases Bush OLC Memos on War on Terror

The Obama Justice Department today released nine OLC memos from the Bush administration ruling on everything from executive military detention of U.S. citizens to executive authority to engage in extraordinary rendition.  The memos are here.

These are simply breathtaking.  They will clearly clearly add fuel to the fire to investigate Bush administration excesses in the war on terror and offer significant new fodder for those calling for prosecution of Bush administration officials. 

The long-and-short of the argument is well known:  The President, as Commander in Chief, possesses inherent Article II power to disregard U.S. law, treaties, and the U.S. Constitution--anything standing in his path to prosecute the war on terror--both abroad and at home.  And even if the President doesn't have inherent Article II power, he has authority under the AUMF.

But these new memos apply this argument to situations previously undisclosed.  For example, the October 23, 2001, memo concludes that the Fourth Amendment doesn't apply to domestic military operations designed to deter and prevent further terrorist attacks and that the Posse Comitatus Act doesn't limit the President's authority to engage the military domestically.  The March 13, 2002, memo concludes that the President has plenary power as Commander in Chief to render members of al Qaeda and the Taliban to third countries, and that nothing in the Geneva Conventions or the Torture Convention restrict this (because the President has determined that those treaties do not apply to al Qaeda and the Taliban).  The June 27, 2002, memo concludes that the President could detain U.S. citizens as enemy combatants, irrespective of 18 U.S.C. 4001(a) (stating that no U.S. citizen shall be detained except pursuant to an Act of Congress).

There's a lot of shocking language in these memos; here's just one gem from the June 27, 2002, memo:

As we explain below, the President's authority to detain enemy combatants, including U.S. citizens, is based on his constitutional authority as Commander in Chief.  We conclude that section 4001(a) does not, and constitutionally could not, interfere with that authority.

Emphasis mine.  Justice Jackson's opinion in Youngstown isn't even mentioned.  (Recall that John Yoo's 2002 "Torture Memo" was heavily criticized for omitting any reference to Jackson's famous framework.)

Now for perhaps the most shocking part:  As soon as the Bush administration was on its way out--but only well after the Supreme Court had reined it in on these and related issues--the OLC retracted nearly all of this.  In memos on October 6, 2008, and January 15, 2009, the OLC stepped back from these extraordinary positions--articulated, as it said, in an "extraordinary historical context" in the wake of the 9/11 attacks--and specifically retracted and cautioned against relying on key portions of these earlier memos.  The language in the retractions tells just how flawed the earlier memos were and (presciently) attempts to provide legal cover for their authors.

I'll take a closer look at these and how they play and post more as reactions set it.  The administration is reviewing these; we don't yet know whether it's going to do anything.



March 2, 2009 in Congressional Authority, Executive Authority, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Sunday, March 1, 2009

Mazzone on the Supreme Court's Supremacy (or Not)

Professor Jason Mazzone (Brooklyn) just posted When the Supreme Court is Not Supreme on ssrn.  This is a terrific article that covers an underexplored area: the proper role and actual effect of state courts interpreting the federal constitution.  Mazzone's review is comprehensive, and his proposal is provocative.  This is well worth a look; I highly recommend it.

Mazzone's central claim is that the "state courts, as a practical matter, have the ability, whether they have noticed it or not, to determine what the Constitution means with little or no oversight by the Supreme Court.  In this sense, the Court is not supreme because authority is shared."

In getting there, Mazzone takes us through an exhaustive history of state court interpretation of the federal Constitution, focusing on five circumstances that gives rise to state court (not Supreme Court) supremacy: dependency of the federal Constitution on underlying state laws, the importance of factual determination to constitutional rulings, rules of preclusion, state court adjudication of criminal cases, independent and adequate state grounds to preclude Supreme Court review of a federal constitutional question, and state decisions "flying below the radar."  He then takes us through "particularized discussions" of Fifth Amendment Takings Clause cases and criminal rights under the Fourth, Fifth, and Sixth Amendments (for reasons that become clear below).

Mazzone (rightly) claims that state court authority under these circumstances and in these areas means that in Constitutional matters we've focused our attention on the wrong Court.  Mazzone:

Once we see that authority to interpret the Constitution is shared, the world of constitutional law and politics looks wholly different.  Hard-fought battles over who serves on the Supreme Court seem excessive.  Marching to the Court in support of this right or against that claim is less consequential.  The modern fascination with the Court's seventy-odd decisions each year--instantly report, dissected, critiqued, turned into symposia--appears an almost unhealthy obsession.  Divining the future by microscopic inspection of the Justices' every written and spoken word becomes improbable. . . . When authority is shared, we should worry less about the Supreme Court, and more about what is happening to federal constitutional law as it is developed and implemented in the state courts and in other venues.

Mazzone goes on to argue that "state court authority should be formally recognized" through a "formal rule that, stated in most general terms, permits state courts, when called upon to rule on federal constitutional claims against state government, to expand upon (but not narrow) federal constitutional rights as construed by the Supreme Court."  He argues that such a rule would be consistent with historical practice and with Justice Stevens's suggestion to the Court "to refuse to hear cases against state government in which a state court has expanded upon the Court's own ruling on federal constitutional rights."  Based on a balanced consideration of objections, he ultimately limits this proposal to Fifth Amendment Takings Clauses cases and criminal cases under the Fourth, Fifth, and Sixth Amendments.

Mazzone covers quite a range of material in this exhaustive and thoughtful piece.  In fact, he really has two articles here:  One on the history and circumstances of state court interpretation of the federal Constitution; and one on the proposal to formalize state court interpretation through a rule that gives state courts greater latitude in expanding rights against the state.  Either one of these makes a good read; together, the piece is a delight.  I highly recommend this.


March 1, 2009 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Obama's "personality" and Executive power

Executive_watchAn article of interest on Obama's first month in office by Elizabeth Drew in The New York Review of Books is available here.

Drew portrays Obama as a thoughtful person and not a micro-manager.  She avers that "Obama's serene self-confidence can cause blind spots," citing the Judd Gregg fiasco as an example.  Of course Drew devotes a large part of her article to Obama's stance on the economy and his relationships with Republicans. 

She also argues that part of the Executive's job description is to get along with Congress and others inside the Beltway - - - the "give-and-take of Washington."

For Con Law Profs, one of the "teachable" aspects of the change in Executives and the seemingly (and reported) differences in their personalities and "styles," is an inquiry into the difference the difference makes.  What are the contours of Executive power that are susceptible to differences in Executives?  And what is the relationship between the structure of Constitutional powers and Presidential personalities?

And for sports-minded students, there is some video of Obama at a basketball game on Oliver Willis.  Now what might that say about Executive power?


(image created at Obamicon)

March 1, 2009 in Executive Authority, News, Teaching Tips | Permalink | Comments (0) | TrackBack (0)