Saturday, June 20, 2009

Osborne's Deference to the States

The Supreme Court ruled this week in DA's Office v. Osborne that a state prisoner has no Fourteenth Amendment Due Process right to access the state's evidence for DNA testing, even where all the parties agree that the testing could conclusively prove his guilt or innocence and even where he offered to pay for it.  The 5-4 majority opinion, authored by Chief Justice Roberts, said that neither procedural due process nor substantive due process compelled access.

In doing so, the opinion seemed to turn the Court's method of dealing with new claimed, substantive due process rights on its head.  In particular, the Court exactly reversed the role that state legislative judgments play in the Court's recognition of new rights.  Osborne's claimed right did not bubble up from an emerging consensus among the states; instead, it devolved down.

The Court's ruling turned turned in large part on the Court's deference to state legislatures in working these issues out.  Chief Justice Roberts wrote:

The dilemma is how to harness DNA's power to prove innocence without unnecessarily overthrowing the established system of criminal justice.

That task belongs primarily to the legislature. 

Slip Op. at 8.  And according to the Court, they're doing it:

Forty-six States have already enacted statutes dealing specifically with access to DNA evidence. 

Slip Op. at 8-9.  The Court shouldn't interfere with these "serious, thoughtful examinations," by establishing a new right, wrote the Chief Justice, citing Washington v. Glucksberg.

But Washington v. Glucksberg used the emerging state consensus in exactly the opposite way.  In that case, the Court refused to recognize a new claimed, substantive due process "right to assisted suicide" in large part because the states had almost universally criminalized assisted suicide.  Chief Justice Rehnquist wrote,

We begin, as we do in all due-process cases, by examining our Nation's history, legal traditions, and practices.  In almost every State--indeed, in almost every western democracy--it is a crime to assist a suicide.

In that case, the state consensus against the claimed fundamental right drove the Court to deny the fundamental right.  In Osborne, the state consensus in favor of Osborne's claimed fundamental right also drove the Court to deny the fundamental right.  The only thing the cases seem to have in common is the denial of the claimed right.

(The Court in Osborne also looked to whether the claimed right was deeply rooted in our history and traditions--an approach in perfect harmony with Glucksberg.  The Osborne court found that the claimed right at its most specific level of description (a "careful description" of the right, in Glucksberg's language) did not meet this test.  Justice Stevens argued in dissent that a more general description of the claimed right--the interest in the "fundamental liberty of freedom from physical restraint," e.g.--certainly would meet the test.) 

Between Glucksberg and Osborne, those seeking judicial recognition of "new" rights are in a tough spot with regard to the states.  An emerging state consensus against a right (as in Glucksberg) cuts strongly against judicial recognition of the new right.  But on the other hand, an emerging state consensus in favor of a right (as in Osborne) also cuts strongly against judicial recognition of the new right.

It seems that whatever the states are doing with regard to a new or emerging right, this approach would simply allow them to keep doing it, without judicial interference and recognition of that right.  Stated only slightly differently:  States are (and should be) "laboratories of democracy" not only in how they protect interests, but also in how they don't protect them.

This approach was also on display in Judge Easterbrook's recent decision for the Seventh Circuit panel on incorporation of the Second Amendment.  (I posted most recently here.)  He wrote,

But the municipalities can, and do, stress another of the themes in the debate over incorporation of the Bill of Rights: That the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule. . . . Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon.

Slip Op. at 8-9.


June 20, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, June 18, 2009

Specter on Judicial Scrutiny of Congressional Fact-Finding (and VRA Reauthorization)

Senator Arlen Specter wrote this week to Judge Sonia Sotomayor to get her views on judicial scrutiny of Congressional fact-finding.  The letter suggests that Specter thinks the Court's increasing scrutiny in cases like U.S. v. Morrison (ruling that Congress exceeded its authority under Section 5 of the Fourteenth Amendment in enacting the Violence Against Women Act) and Alabama v. Garrett (ruling that Congress exceeded its authority under Section 5 in enacting the Title I of the ADA) is inappropriate.

The issue is particularly important now, as the Court sets to rule in Northwest Austin Municipal Utility District v. Holder, the case challenging Congressional reauthorization of the preclearance provision in the Voting Rights Act.  (We most recently covered the case here.)

Senator Specter's letter references the oral argument in that case, quoting Chief Justice Roberts's questions that implied criticism of Congressional fact-finding in support of reauthorization.  And he compared those questions to Chief Justice Roberts's very different answers to questions at his confirmation hearings.  Senator Specter:

The Supreme Court heard oral argument in Northwest Austin Municipal Utility District v. Holder on April 29, 2009, involving the sufficiency of the Congressional record on reauthorizing the Voting Rights Act.  While too much cannot be read into comments by justices at oral argument, Chief Justice Roberts's statements suggested a very different attitude on deference to Congressional fact finding than he expressed at his confirmation hearing.

Senator Specter leaves no doubts in the letter where he comes down on the adequacy of Congressional fact-finding in support of VRA reauthorization:

As a factual basis for the 2007 Voting Rights Act, Congress heard from dozens of witnesses over ten months in 21 different hearings.  Applying the approach from Chief Justice Roberts's confirmation hearing, that would appear to satisfy the "congruence and proportionality standard."

So here are the Senator's questions to Judge Sotomayor:

1. Would you apply the Justice Harlan "rational basis" standard or the "congruence and proportionality standard" [when reviewing Congressional findings in support of legislation under Section 5 of the Fourteenth Amendment]?

2. What are your views on Justice Scalia's characterization that the "congruence and proportionality standard" is a "flabby test" and "an invitation to judicial arbitrariness and policy driven decision making"?

3. Do you agree with Chief Justice Rehnquist's conclusion that the Violence Against Women legislation was unconstitutional because of Congress's "method of reasoning"?

4. Do you agree with the division of constitutional authority between Congress and the Supreme Court articulated by Chief Justice Roberts in his responses [at his confirmation hearings]?

Judge Sotomayor's answers will likely depend on whether the Court rules in the NAMUD case before she has a chance to answer--her hearings are now set to begin on July 13--and, if so, how.



June 18, 2009 in Congressional Authority, Fourteenth Amendment, News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 16, 2009

New York state constitutional crisis?

New York's state constitutional crisis is not about Long Island seceding (see below), but about a Legislative logjam.  As the NYT reported yesterday, "A week after Republicans wrested power in the State Senate away from Democrats, their thin majority collapsed on Monday, leaving the chamber in a 31-31 tie with its leadership picture more confused than ever."   Ordinarily, a tie in the Senate would be broken by the Lieutenant Governor; however NY's Lt. Governor, David Paterson, became Governor after Governor Eliot Spitzer resigned after a scandal.

The Democrats filed suit in state supreme court (note that in New York, the highest court is the Court of Appeals), but the judge dismissed the case, relying on separation of powers issues under the state constitution.  (Decision below)

Smith v Espada McNamara Decision   

Decision courtesy of Times-Union in Albany.  For good continuing coverage, see the "Capitol Confidential" blog of the Times-Union.


June 16, 2009 in News, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Secession of Long Island Redux

Could Long Island actually secede from New York? 

Our previous post from May 14 is here.  It seems the Daily Show has caught up with us.  The segment from last night's show (in that typically offensive style) is here: 

The Daily Show With Jon StewartMon - Thurs 11p / 10c
Long Island Wants to Secede
Daily Show
Full Episodes
Political HumorJason Jones in Iran


June 16, 2009 in News, State Constitutional Law, Web/Tech, Weblogs | Permalink | Comments (0) | TrackBack (0)

Monday, June 15, 2009

Government Seeks Review of Ninth Circuit's State Secrets Ruling

The government filed a petition for reconsideration or rehearing en banc of the Ninth Circuit panel's decision in Mohamed v. Jeppesen Dataplan, Inc., the case against a private company for its alleged role in the CIA's extraordinary rendition program.  The panel rejected the government's claim that the state secrets privilege required dismissal of the entire suit at the pleading stage.  I posted most recently on the case here; my interview with lead counsel for the plaintiff, ACLU attorney Ben Wizner, is here.

The government's petition argued that the panel took an unduly narrow view of the privilege as recognized in Totten v. United States; that case, it wrote, held that "dismissal is appropriate whenever it becomes clear that further proceedings risk disclosure of state secrets," and not only under the narrow facts of Totten, i.e., when a plaintiff seeks to enforce an espionage agreement. 

The government also took issue with the panel's interpretation of United States v. Reynods that the state secrets privilege is an evidentiary privilege that therefore cannot protect against the disclosure of secret information through pleadings.  Under the panel's ruling, the government argued, Jeppesen would have to answer the complaint's allegation that it secretly contracted with the CIA to help conduct the extraordinary rendition program.  Any answer could reveal a state secret, wrote the government, and revealing the information would harm CIA relations with cooperating foreign nations.  (Take a look at the amended complaint yourself.  It is, indeed, quite specific in its allegations about the extraordinary rendition program, but it's also based largely on publicly available information (and it cites its sources).)

Finally, the government highlighted the circuit split, leading with El Masri v. United States, the Fourth Circuit decision affirming the pleading-stage dismissal of all claims against the government for alleged detention and torture by the CIA, thus teeing up its Supreme Court cert. petition should the full Ninth Circuit reject the government's claims.


June 15, 2009 in Recent Cases, State Secrets | Permalink | Comments (0) | TrackBack (0)

DC rejects referendum on recognition of same-sex marriages

The DC Board of Elections and Ethics ruled today that it will not allow a voter referendum reconsidering DC's stance on same-sex marriages.


As the Board's 12 page opinion (available as download here) explained, the referendum seeks to suspend section 3(b) of Act 18-0070, the “Jury and Marriage Amendment Act of 2009,” (“the Act”), which recognizes same-sex marriages validly entered into in another jurisdiction, until this provision has been presented to the registered qualified electors of the District of Columbia for their approval or rejection. 
The Board gives this history of the Act:

The Act’s originating bill, B18-0010 (“the Bill”) was introduced on Friday, January 02, 2009 by D.C. Council Chairman Vincent Gray at the request of Mayor Adrian Fenty.  An Amendment to the Bill, which included the language of section 3(b), was offered by Councilmember Phil Mendelson on April 7, 2009. The Council approved the Bill as amended on its first reading on that date. The Council approved the Bill again on its final reading on Tuesday, May 5, 2009 by a vote of 12-1. The Council transmitted the Bill to Mayor Fenty on Wednesday, May 6, 2009, and the Mayor signed the Bill on the same day.  The resulting Act was transmitted to the U.S. Congress on Monday, May 11, 2009, and is projected to become law on Monday, July 6, 2009.

The D.C. Board of Elections and Ethics explained that it may not accept a referendum measure under several circumstances, including if the "measure authorizes, or would have the effect of authorizing,
discrimination prohibited under Chapter 14 of Title 2" which contains the District of Columbia Human Rights Act, HRA, D.C. Official Code § 2-1401.01 et seq. (2006 Repl.).

The Board concluded that the

Referendum’s Proposers would, in contravention of the HRA, strip same-sex couples of the rights and responsibilities of marriage that they were afforded by virtue of entering into valid marriages elsewhere, and that the Council intends to clearly make available to them here in the District, simply on the basis of their sexual orientation. Because the Referendum would authorize discrimination prohibited by the HRA, it is not a proper subject for referendum, and may not be accepted by the Board.

Opinion at 11.

Thus, the DC Board of Elections and Ethics reaches a very different conclusion than the California Supreme Court in its ruling on the constitutionality of that state's Proposition 8, last discussed here, which was certified by the California Secretary of State.   The DC Board is not basing its rationale on constitutional principles; however, the Board's ruling does implicate the balance between equality principles and direct democracy in the form of a voter referendum.


June 15, 2009 in Elections and Voting, Family, Sexual Orientation, Sexuality | Permalink | Comments (0) | TrackBack (0)

CFP: Comparative Constitutionalism & National Security

Pace International Law Review 2009-2010 Symposium

Call for Submissions


Pace International Law Review is planning a symposium entitled Comparative Constitutional Law: National Security Across the Globe to be held in November of 2009.  The day-long symposium will feature multiple panelists and guest speakers.  The editors of Pace International Law Review invite proposals for articles, essays and book reviews from scholars, researchers, practitioners, and professionals.  Contributions to be considered for presentation at the symposium and subsequent publication or for publication only.


Please submit proposals of no more than 500 words to by June 30, 2009.  All proposals should include the intended author's name, title, institutional affiliation and contact information.  The proposals should address issues pertinent to the interrelationship between national security concerns and constitutional law of a particular nation or nations.   Article proposals that provide a comparative analysis of issues and concerns faced by various nations are preferred.  The proposals should be as thorough as possible and may include suggestions for other panelists who experts in the proposed topic.  

Book review proposals also should include (a) the title and publication date of the book proposed for review; (b) a description of the importance of the book to the general topic; and (c) any other information relevant to the book or proposed review (e.g., the reviewer's expertise or any relationship with the author).  All authors are welcome, but not required, to submit a CV.

We expect to make offers to the selected guest speakers in August, 2009.  We encourage clear, concise, and an accessible proposals for articles, essays and book reviews that will interest lawmakers, attorneys and students.  All proposals will be considered for publication even if not selected for the symposium. Complete manuscripts for work that will not be presented at the symposium will be due by August 31, 2009.

June 15, 2009 in Comparative Constitutionalism, Conferences, Foreign Affairs, State Secrets | Permalink | Comments (0) | TrackBack (0)

Relevance of the United States Supreme Court: limited to nip and tuck?

How important is the United States Supreme Court?

Democracy: A Journal of Ideas has an interesting review

the Court will nip and tuck, but it won’t go near vital organs. It will trim the reach of the federal government by reading statutes narrowly, but it will not involve the reshaping of the Republic’s core policy commitments.

This does not mean the Supreme Court is irrelevant. It will continue to matter on social issues such as abortion, sexual privacy, and equality issues related to sexual orientation. Its opinions in these matters will be of great consequence to millions of people.

This seems a bit contradictory.  And perhaps their argument regarding the Court's ruling in Heller that there is an individual right to bear arms under the Second Amendment may be a bit premature:

 the ruling was narrowly written, and what seemed to be a landmark opinion has had surprisingly little effect on other gun laws and other governmental regulations of firearms. Indeed, narrowing language in Justice Scalia’s majority opinion in Heller makes it perfectly clear that the Court will not endorse challenges to gun regulations that have broad popular support–even though these laws should be equally vulnerable to constitutional challenge given the majority’s own logic.

But this is a thoughtful review, especially given its brevity, of three books that merit reading this summer:

Lincoln and the CourtImageDB
by Brian McGinty
Harvard University Press • 2008 • 384 pages • $18.95 (Paperback)

FDR v. the Constitution
by Burt Solomon
Walker & Company • 2009 • 352 pages • $27

The Supreme Court and the American Elite
by Lucas A. Powe, Jr.
Harvard University Press • 2009 • 432 pages • $29.95


June 15, 2009 in Books, History, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, June 14, 2009

Sotomayor, Ricci, and Affirmative Action – Part II – Standing to Speak

As noted in Part I of this post, of all Judge Sonia Sotomayor's legal decisions, the Ricci case has garnered the lion's share of the media and academic attention.  Part I of this post considered the opportunities presented by a national discussion of the issues raised in Ricci.  This part, as promised, will analyze the language that has been used to discuss Judge Sotomayor’s role in the case and her other remarks on issues of race.

The word that has been tossed-about most often in the discussion of Judge Sotomayor's role is "racist" or "reverse racist."  There seem to be four bases for this allegation: First, there is her ruling in the Ricci case which disadvantaged the white firefighters.  Second, her strong idenitifcation as a Latina has led some to opine that she does not possess an "ability to rule fairly without undue influence from her own personal race, gender, or political preferences."  Third, she is a member of the Latino civil rights advocacy group, the "National Council of La Raza."  Fourth, the following comment - "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life," has led some to remark that she is incapable of judging cases involving whites impartially.

The purpose of this post is not to debunk any of these claims.  That has been done quite well elsewhere.  For instance, Dean Kevin Johnson, Feminist Law Professors' Ann Bartow, and Professor Michael Dorf have all explained that when read in context the "wise Latina" quote is not so shocking.  SCOTUS Blog completed a two-part series examining each of Judge Sotomayor's opinions in cases involving race.  The conclusion? 

In sum, in an eleven-year career on the Second Circuit, Judge Sotomayor has participated in roughly 100 panel decisions involving questions of race and has disagreed with her colleagues in those cases (a fair measure of whether she is an outlier) a total of 4 times.  Only one case (Gant) in that entire eleven years actually involved the question whether race discrimination may have occurred.  (In another case (Pappas) she dissented to favor a white bigot.)  She participated in two other panels rejecting district court rulings agreeing with race-based jury-selection claims.  Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.

If those points have been debunked, what is this post about?  Well, Tom Goldstein of SCOTUS Blog began his study by stating, "It is remarkable how much ink has been spilled on Sonia Sotomayor’s ethnic background rather than her legal background."  For me, this is the intriguing question.  Upon hearing the "wise Latina" comment, many remarked, "Would a white male have been able to make the same remark?"  To me, the question in response is "Would a white male have been grilled as stringently on this issue?"  

In his 1992 book Faces at the Bottom of the Well, Professor Derrick Bell wrote about the "Rules of Racial Standing."  The "Rules" were a series of guidelines for African Americans in public life.  Rule number two reads as follows:

"[There is] a widespread assumption that blacks, unlike whites, cannot be objective on racial issues and will favor their own no matter what . . . Black judges hearing racial cases are eyed suspiciously and sometimes asked to recuse themselves in favor of a white judge."

Professor Bell's rules seem to be unusually prescient in this situation.  Given the tone and tenor of the discussion, it seems the allegations of racism were based on little more than the fact that she is both Latina and a woman.   For contrast, I reviewed the hearing transcripts for Justices Roberts and Alito (available here and here respectively).  While issues of race and affirmative action were mentioned, even a cursory review of the transcripts indicates that race was not a central issue of either of the hearings.  Neither man was pressed very hard to demonstrate that he could be fair to a multitude of people.  The media coverage of their confirmations certainly did not focus on those issues.  So, the question should not be whether the Goldstein report exhonerates Judge Sotoamayor.  The question should be why such a report had to come so early in the process, weeks before the confirmination hearings.

Why should we care about the public treatment of Judge Sotomayor on issues of race?  There are at least three reasons.  First, judicial intergrity is at stake.  If the allegation that Judge Sotomayor had disdain for white litigants were true, that would definately be cause for concern.  However, again, no support has been brought forth on this score other than her ethnicity.  This is unfortunate, as it implies that non-white jurists cannot be fair to white litigants. The necessary corrollary to that line of reasoning is that white judges can only be fair to whites.  Truly, is this the message we want to send - that justice depends upon the color of the judge rather than the content of the case file?  Chief Justice Earl Warren - a white man - sided with African Americans more often than not.  Convesely, the current Court's lone African American - Clarence Thomas - does very little to advance issues of race.  Justices Blackmun, Brennan, and Marshall - all men - helped to advance the rights of women.  Justice Brennan was Catholic, but supported abortion rights in Roe and Webster.  Surely, we trod a dangerous path when we believe we can predict a Justice's vote based on phenotype, religion, or other characteristics which have nothing to do with legal acumen.  We must view these jurists as individuals and let their records speak.  To do otherwise is an unfair attack on the character of a judge.

Second, there is the issue of institutional legitimacy.  While the Executive Branch can help enforce its rulings, the Court depends largely on its institutional legitimacy to convince the public of the rectitude of its decisions.   An attack on a nominee's legal positions is fair game - always.  But an attack based on assumptions regarding a nominee's race, gender, sexual orientation, religion, or nationality - matters that are not subject to change or debate -  should be beyond the pale.   When we make those assumptions we diminish the person, as stated.  But we as we diminish the individual, we also diminish the institution he serves by making it harder to trust the fairness of the institutional output.  In short, it would be unfair to assume, for instance, that a Court comprised of a Catholic majority will be unfair to Protestants, Jews, Muslims, or others.  If such unfounded allegations are leveled, the institution suffers.   

Finally, there is a larger issue of Constitutional law here.  Our president is African American.  Our newest Supreme Court nominee is Latina.  Thus, America is ushering in a new era of leadership.  As this happens at the federal, state, and local levels, will the presumption be that any programs enacted by racial minorities to benefit other racial minorities (and support of such prograns by minority judges) are immediately suspect?  In Croson, Justice O'Connor seemed to suggest as such when she noted that heightened scrutiny was necessary because the majority of the Richmond city council that enacted the plan was African American.  As we enter a new America where people of color occupy more authority positions, many current and former presumptions and assumptions will need to be challenged.  I'm not entirely certain how this will play out, but I do know that it would be unwise to assume at the outset that minorities are only motiviated by race and therefore :1) cannot be fair to those outside of their race; and 2) will favor "their own" to the exclusion of rationality.  To engage in these assumptions would surely validate Professor Bell's Rules. 

In closing, let us be careful of the words and tone we use to discuss nominees for the good of the nominees, the institution, and our nation.


June 14, 2009 | Permalink | Comments (0) | TrackBack (0)