May 30, 2009
Dignity, Freedom and South African Constitutional Justice Ackerman: Robson's Saturday Evening Review
ys in this collection provide insights into the relationships between dignity and freedom as constitutional principles, not only in the "new South Africa," but also for those interested in American constitutional law and its foundations and theories.
Several essays might be of special interest to American ConLaw Profs:
Freedom By Any Other Name? A Comparative Note on Losing Battles While Winning Wars, by Frank Michelman of Harvard Law School compares the South African constitutional concern with the principle of freedom to "residual liberty" constitutional issues in the United States known - in its most "congenial" phrasing according to Michelman - as substantive due process.
Toward a Relational Constitutionalism by Peggy Cooper Davis of NYU Law discusses the well-known view that the South African Constitution is reactive to Apartheid, but then disputes the well-known comparison that the United States Constitution is not "reactive." Cooper argues that the Reconstruction Amendments were reactive and that the US Constitution could (and should) be viewed through their transformative character.
Both Michelman and Davis discuss the South African Constitutional Court's sexuality decisions - a matter on which the South African Constitutional Court has been at the forefront. These decisions and their theoretical underpinings are the centerpieces of the excellent contributions by Pierre de Vos and AJ Barnard-Naude. Socio-economic rights is another area in which the South African Constitutional Court is seen as progressive and the essay by Sandra Liebenberg compellingly connects "freedom" to issues of what Americans think of as "equality."
Drucilla Cornell, an American law professor now holding a chair at University of Cape Town, offers the best introduction to the work of former Justice Laurie Ackerman, including Ackerman's reliance on Kant in his judgments and the importance of dignity as well as uBuntu. As she does so, she illuminates issues far beyond a single justice or a single nation. Her piece alone is worth the price of the book.
The book will be launched June 4 at the Book Lounge in Cape Town. Unfortunately, my visit to the University of Cape Town has ended, but if you are in the neighborhood, it promises to be an event worth attending.
May 29, 2009
Justice Roberts Profile by Jeffrey Toobin
Toobin's article on Chief Justice John Roberts in the New Yorker is worth a read, especially in light of current discussions about a person's background and judicial philosophy. Toobin writes that Roberts said “Judges are like umpires,” during his confirmation hearing, continuing,
Toobin writes about the ways in which Robert's career marked him:
In private practice and in the first Bush Administration, a substantial portion of his work consisted of representing the interests of corporate defendants who were sued by individuals. For example, shortly before Roberts became a judge, he successfully argued in the Supreme Court that a woman who suffered from carpal-tunnel syndrome could not win a recovery from her employer, Toyota, under the Americans with Disabilities Act. Likewise, Roberts won a Supreme Court ruling that the family of a woman who died in a fire could not use the federal wrongful-death statute to sue the city of Tarrant, Alabama. In a rare loss in his thirty-nine arguments before the Court, Roberts failed to persuade the Justices to uphold a sixty-four-million-dollar fine against the United Mine Workers, which was imposed by a Virginia court after a strike. One case that Roberts argued during his tenure in the Solicitor General’s office in George H. W. Bush’s Administration, Lujan v. National Wildlife Federation, seems to have had special resonance for him.
According to Toobin, who does a nice job of explaining standing, Roberts supports "gatekeeping" doctrines. There is much else here, including discussions of recent oral arguments in the voting rights case and recent decisions such as Seattle Independent Schools and Boumediene v. Bush (dissenting).
May 28, 2009
Sotomayor is No Activist (by any Measure)
By my measure, Judge Sotomayor is less activist than the average judge and does pretty well compared to many other notable appellate judges.
(In criminal cases, "Sotomayor looks a tad more defendant friendly relative to her peers. However, given the small sample sizes, the difference is not significant," Yung writes in a follow-up post.)
Yung ranks Judges Guido Calabresi and Richard Posner as the most activist in his sample; he ranks Judges Diana Gribbon Motz and J. Harvie Wilkinson III as the least activist.
What is an "activist"? Yung:
Judges are "activist" when they substitute their judgment in place of other constitutional actors when the formal model would predict otherwise. The key to the definition is the concept of substituting judgment. Ultimately, activist judges subordinate the opinions of others in favor of their own. . . . I refer to "constitutional actors" as the primiary government actors in the U.S. Constitution: the courts, Congress, the executive, and state governments. So if an appellate judge is reviewing an appeal of a suppression motion decision and substitutes his or her judgment in place of a police officer, that review has no "activist" implications. However, reviewing the judgment of the district court does.
Yung will present his work this weekend at Law and Society, Saturday at 4:30.
CFP: On Justice Albie Sachs of South African Constitutional Court
May 27, 2009
Rivera on Sotomayor - the diversity factor
Interviewed on PBS News Hour here, my colleague Jenny Rivera of CUNY School of Law had this to say about Sotomayer (for whom she clerked) in terms of background, judicial diversity, and decision-making:
GWEN IFILL: Well, I want to pick up on that with Jenny Rivera, because you talk about the real life experience of a Thurgood Marshall. How much of the real-life experience of a Sonia Sotomayor could you be expected to actually have an impact in some place as august as the Supreme Court?
JENNY RIVERA: Well, as she said today, her life experiences have informed who she is. They've shaped who she is. It certainly shapes the way the world perceives her.
She grew up, as we all know now, very humble beginnings, grew up basically at the knee of her mother. And so those experiences are going to inform the way she sees those cases.
JENNY RIVERA: Well, I think the president didn't make a choice based on identity politics. He made the choice based on the merits of her intellectual capabilities, on the experience that she brought to the court.
And you heard David Axelrod say, you know, the fact that she happens to also be Latina and be a woman, it's wonderful that we can bring that to the court. But this was a choice based on the strength of her background, her experience, and her intellect. And, certainly, that's important.
But at the same time, we have to recognize that the court is vulnerable to criticism that it doesn't look like the rest of the country and therefore is insensitive to those issues, and it is encased in this bubble, and there's an insularity about the court.
So it is important that we all feel that all sections, all branches of government somehow have a certain integrity behind them and really speak to people.
And I think certainly President Obama, when he says he's looking for someone who has empathy and who understands the implications of these cases on real people, is recognizing also the significance of the judiciary, not just the executive branch, not just the legislative branch, being a branch of government that all people in the United States, all our various, diverse communities can feel carry a certain integrity behind them and rule not based on appearances, but look at the merits of the case, and apply the rule of law, and apply those values of the Constitution.
So, given that appraisal, perhaps we could expect Judge Sotomayer to say something like this in her confirmation hearing?
And I know about their experiences and I didn't experience those things. I don't take credit for anything that they did or anything that they overcame.
But I think that children learn a lot from their parents and they learn from what the parents say. But I think they learn a lot more from what the parents do and from what they take from the stories of their parents lives.
And that's why I went into that in my opening statement. Because when a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.
And so it's my job to apply the law. It's not my job to change the law or to bend the law to achieve any result.
But when I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."
If so, she'd be repeating exactly what Judge Alito said in the Senate Confirmation hearings - - - as quoted by Glenn Greenwald on salon.com today.
California Supreme Court on Proposition 8: Analysis and New Litigation
The California Supreme Court has issued its opinion in the three consolidated cases (Strauss v. Horton, S168047; Tyler v. State of California, S168066; City and County of San Francisco v. Horton, S168078) challenging the constitutionality of Proposition 8. As predictable from our previous post on the oral argument, the court declined to determine proposition 8 was unconstitutional.
Only Justice Carlos Moreno dissents, based on his interpretation of California's equal protection clause, which is not only distinct from the Fourteenth Amendment, but also
(Moreno opinion at 4). In considering the distinction between amendments and revisions which seems crucial to California state constitutional law doctrine, Moreno relies on Raven v. Deukmejian (1990) 52 Cal.3d 336, 341-343, "the one case to invalidate a portion of an initiative on the grounds that it constituted a qualitative revision," even as he notes it is distinguishable:
(Moreno opinion at 17-18).
On the retroactivity issue, Moreno joins the majority to make the opinion unanimous that "Proposition 8 cannot properly be interpreted to apply retroactively to invalidate lawful marriages of same-sex couples that were performed prior to the adoption of Proposition 8" and to do so "would pose a serious potential conflict with the state constitutional due process clause." (Majority opinion at 133).
But the California Supreme Court opinion may not necessarily be the last litigation. Two - - - perhaps unlikely - - - attorneys have filed a lawsuit in federal district court. As the LA Times reports:
The complaint has two simple claims under the United States Constitution: a due process claim and an equal protection claim.
Court Rejects State's Limits on Federal Civil Rights Suits
A sharply divided Supreme Court ruled yesterday that New York's efforts to limit prisoners' federal civil rights claims in New York state courts violated the Supremacy Clause.
New York moved to restrict prisoner-rights claims in New York state courts under 42 U.S.C. Sec. 1983 in order to curb what it deemed "frivolous and vexatious" suits against state correctional officers. (Section 1983, a Reconstruction-era statute, authorizes civil suits against state officers for violations of federal constitutional rights in the scope of their employment. Plaintiffs can file in federal courts or in state courts of general jurisdiction.) Thus the state stripped its courts of jurisdiction over Section 1983 claims by prisoners against correction officers. (The state also stripped its courts of jurisdiction under a state statute that, like Section 1983, authorized civil suits against state officers for violations of constitutional rights.) But the state granted jurisdiction over these claims to a state court of limited jurisdiction, the Court of Claims, with a 90-day notice requirement, no entitlement to a jury trial, no right to attorney's fees, and no punitive damages or injunctive relief.
The New York law thus severely restricted prisoner-rights claims in state courts under Section 1983. (Prisoners, of course, could still file a Section 1983 claim in federal court.)
Justice Stevens (for himself and Justices Kennedy, Souter, Ginsburg, and Breyer) ruled that the New York law violated the Supremacy Clause. Stevens wrote that while "states retain substantial leeway to establish the contours of their judicial systems, they lack authority to nullify a federal right or cause of action they believe is inconsistent with their local policies." Slip Op. at 6. Because New York's law "operates more as an immunity-from-damages provision than as a jurisdictional rule," Slip Op. at 7, n. 5, it's not a "neutral state rule regarding the administration of the courts"--an exception to the "presumption of concurrency" between federal and state law under Howlett v. Rose (1990). Slip Op. at 6.
Moreover, the law was not "neutral," even though it divested state courts of jurisdiction over both state and federal law authorizing prisoner constitutional rights suits, because it targeted only a "particular species of suits--those seeking damages relief against correction officers." Slip Op. at 10. Stevens for the Court:
We therefore hold that, having made the decision to create courts of general jurisdiction that regularly sit to entertain analogous suits, New York is not at liberty to shut the courthouse door to federal claims that it considers at odds with its local policy. A State's authority to organize its courts, while considerable, remains subject to the strictures of the Constitution.
Slip Op. at 11.
In dissent, Justice Thomas (for himself, Chief Justice Roberts, and Justices Scalia and Alito) argued that the Court's cases didn't support the non-discriminatory requirement in the Court's definition of "neutral" and that states had plenty of authority and room to issue neutral rules of administration for their own courts. (Roberts, Scalia, and Alito joined only a narrow part of Thomas's much broader opinion, part of which focused on the original intent of Article III.)
The case is a victory for federal civil rights claimants in state courts. It means that states that seek to limit access to their courts for federal constitutional rights claimants face a higher bar--one that New York's efforts failed to satisfy--and that states can't try to side-step their way around federal civil rights law by disguising an immunity provision as a jurisdictional rule, even as states retain substantial authority to organize their own courts.
Sotomayor Nomination - Initial Reaction Round-up Part II - On the Issues
This portion of the round-up will focus on what selected news outlets have reported about Judge Sonia Sotomayor's positions on various issues.
Apparently, Judge Sotomayor has yet to rule in a domestic abortion case. However, she has ruled in a case regarding the "Mexico City Policy" or the "global gag rule." In that case, she ruled in favor of upholding the policy.
Business and Commerce
The Wall Street Journal reports that "There is no reason for the business community to be concerned . . . The judge has “ruled in favor of preemption about half of the times that the issue has been presented to her." Moreover, the Journal states that Judge Sotomayor "has sided with defendants in cases involving the standards that govern when cases can be brought as a class actions and the extent to which plaintiffs’ claims can be preempted by more defense-friendly federal or international laws."
A piece from wired.com reminds us that Judge Sotomayor once practiced IP law and also ruled on IP issues on the Second Circuit. Thus, according to the website,“If confirmed, she will be the first justice who has written cyberlaw-related opinions before joining the court.” In one case, the article notes she ruled against Netscape, stating, "We conclude that in circumstances such as these, where consumers are urged to download free software at the immediate click of a button, a reference to the existence of license terms on a submerged screen is not sufficient to place consumers on inquiry or constructive notice of those terms.”
The Wall Street Journal reports that Judge Sotomayor "has repeatedly sided with employees who claimed they were the victims of discrimination or a hostile work environment." In support, the Journal cites a case from 2000 wherein Sotomayor reinstated the plaintiff's hostile-work-environment claim. But, the same article reports that Judge Sotomayor has been "far from a reliable vote" for plaintiffs in employment discrimination cases. According to the WSJ, "In 1999, for example, she ruled against a black nurse, who claimed she had been fired from Staten Island University Hospital in New York due her race and age and the fact that she had suffered a debilitating injury. Judge Sotomayor ruled that the plaintiff, Wendy Norville, could move ahead on her disability claim, but tossed out the race and age claims."
This is just the beginning. More information - and of course, analysis - will be forthcoming. Also, for a more in depth consideration of Judge Sotomayor's opinions, please see the four part series at SCOTUSBlog. (Part I of the series is here.)
May 26, 2009
Sotomayor Nomination - Initial Reaction Round-up, Part I
As expected, the reaction to the nomination of Second Circuit Judge Sonia Sotomayor (correct pronunciation here) has been swift in coming. First, some facts. According to Orin Kerr at the VC, Judge Sotomayor is "the third Yale Law grad of the nine Justices on the Court; the sixth Catholic; the ninth former court of appeals Judge; and the first Second Circuit judge to get the nod since Thurgood Marshall in 1967." In addition, Judge Sotomayor has served as a district court judge, thus in the words of President Obama, "Walking in the door she would bring more experience on the bench, and more varied experience on the bench, than anyone currently serving on the United States Supreme Court had when they were appointed."
With the nomination announced, all that remains is the confirmation proceedings. WIth the Democratic caucus currently holding a 59-40 advantage that is expected to increase to 60-40 with the likely ruling that Al Franken will be the new Democratic Senator from Minnesota, the confirmation should be fairly easily accomplished. (Time Magazine is already predicting that this ease based on Sotomayor's qualifications as well as the dynamics of the Senate.) However, this does not mean that there will not be bumps along the way. While most on the Republican side of the aisle are keeping quiet for the moment, Senator McConnell has made it a point to remind everyone that "the Senate is not a rubber stamp" and also promised to "fairly," but "thoroughly," evaluate the nominee. However, the ABA Journal has already outlined four potential lines of attack, including that she "is not smart enough;" "is a judicial activist;" "is dismissive of positions with which she disagrees;" and " is too gruff and impersonable." It looks like the ABA might be onto something, as the few statements from the right that are trickling out describe Judge Sotomayor as "a judge who will put the law above her own personal political philosophy" (Mitt Romney); an "avowed judicial activist" (Americans United for Life); and "a nominee whom he can count on to indulge her own liberal biases"(Ed Whelan). For their part, the feminist writers note that Sotomayor is likely to face gender-based attacks as well, such as her lack of children and even her weight.
The confirmation process should be be interesting to watch. Sotomayor has a long judicial record, and has made some interesting comments about the judicial role. In Part II of this round-up, we'll explore the nomination in more detail. There is so much more that is being said. We'll also have an analysis of the pick. Please return to this space as your source for all things nomination related. We will do our best to cover and analyze all major developments.
Obama to Nominate Sotomayor
President Obama will nominate Judge Sonia Sotomayor (2d Cir.) to replace Justice Souter on the Supreme Court at a ceremony at 10:15 this morning at the White House, according to the NYT (and numerous others).
Federalist Society on Counterterrorism and the Obama Administration
The Federalist Society and the Heritage Foundation will co-host a program titled Counterterrorism and the Obama Administration on Thursday, 5/28, at the Capitol Visitor Center. (Register here.) From the program description:
President Obama has decided to close Guantanamo and reassess our counterterrorism policies. The leader of the Pakistani Taliban has threatened "an attack in Washington that will amaze everyone in the world." What happens next? What legal structures can keep America safe against terrorist attacks? Should the law of armed conflict maintain its primacy? Can ordinary criminal courts successfully try terrorist suspects? Should specialized national security courts be created? What interrogation, surveillance and intelligence tools are essential to prevent future attacks?
Here's the line-up:
THURSDAY, MAY 28
9:00 a.m. – 9:15 a.m.
Registration (Continental breakfast available)
9:15 a.m. – 10:45 a.m.
Panel 1: Detention and Trial of Terrorist Suspects
- Jonathan Hafetz, Esq., American Civil Liberties Union
- Elisa Massimino, Chief Executive Officer and Executive Director, Human Rights First
- Andrew C. McCarthy, Senior Fellow, National Review Institute
- David B. Rivkin, Jr., Partner, Baker & Hostetler LLP
- Charles D. "Cully" Stimson, Senior Legal Fellow, Center for Legal and Judicial Studies, The Heritage Foundation, and former Deputy Assistant U.S. Secretary of Defense (Detainee Affairs)
- Moderator: The Hon. Edwin Meese, III, Ronald Reagan Distinguished Fellow in Public Policy and Chairman, Center for Legal and Judicial Studies, The Heritage Foundation
10:45 a.m. – 11:00 a.m.
11:00 a.m. – 12:30 p.m.
Panel 2: Preventing Attacks through Interrogation and Transfer of Terrorists Suspects
- Deborah Pearlstein, Associate Research Scholar, Woodrow Wilson School of Public and International Affairs, Princeton University
- Gabor Rona, Acting Director of Law and Security and International Legal Director, Human Rights First
- The Hon. Edwin D. Williamson, Sullivan & Cromwell LLP and former Legal Adviser of the U.S. Department of State
- Benjamin Wittes, Senior Fellow, Governance Studies, Brookings Institution
- Moderator: William Kristol, Founder and Editor, The Weekly Standard
12:30 p.m. – 12:45 p.m.
12:45 p.m. – 2:45 p.m.
Luncheon and Panel 3: Preventing Attacks through Surveillance and Intelligence
- Mike German, Policy Counsel, American Civil Liberties Union
- Kate Martin, Director, Center for National Security Studies
- Prof. Nathan A. Sales, Assistant Professor of Law, George Mason University School of Law and former Deputy Assistant Secretary, U.S. Department of Homeland Security
- The Hon. George J. Terwilliger III, White & Case LLP and former Deputy U.S. Attorney General
- Moderator: Stewart A. Baker, Steptoe & Johnson LLP and former Assistant Secretary for Policy, U.S. Department of Homeland Security
2:45 p.m. – 3:00 p.m.
- The Hon. Kenneth L. Wainstein, O'Melveny & Myers LLP and former Assistant U.S. Attorney General for National Security
May 25, 2009
Jawad, in Limbo at Guantanamo, Seeks Relief from Afghan Court
Mohammed Jawad, detained at Guantanamo at age 12 or 18 (depending on whom you talk to), is stuck in limbo at Guantanamo until the Obama administration works out its new detention and trial policies for Guantanamo detainees. Jawad's attorneys, frustrated by the delays and potential changes in policies just as Jawad's military trial started going his way, sought an order last week from Afghan courts to release Jawad, reports the NYT. The lawyers argue that Afghanistan's constitution at the time of Jawad's capture did not allow for the extradition of prisoners to another country.
Any order from the Afghan courts could only exert diplomatic pressure--not legal pressure--against the U.S. and U.S. courts. But Jawad's move to seek relief from the Afghan judiciary is also calculated to keep public attention on this troubling case of the (perhaps) youngest detainee, caught between an old military tribunal system and a (potentially) new one.
The case highlights the new due process problems arising from the administration's review of detention policy and potentially revamped military tribunals. As Jawad's military attorney said in the NYT piece: "We were in a winnning posture in the trial, so to now come along and change the rules in the middle of the game, who knows what's going to happen." Given the options President Obama set out in his speech last week, it's not even obvious that Jawad will be subject to a revamped military tribunal--especially because there may not be evidence to convict him. (Jawad's military judge threw out his confessions last October, because Afghan police threatened to kill his familly.) If not, and if he's not moved to an Article III court, he could fall into Obama's fifth category of detainees--those subject to (apparently) indefinite detention.