Saturday, June 27, 2009
The Congressional Research Service- a non-partisan body providing research services to both parties and both houses of Congress - released a 59-page report (available here) on Judge Sonia Sotomayor's judicial rulings, ideology, and methodolgy.
First, the study attempted to discern any indications of an ideological bent in Judge Sotomayor's cases. On this issue, the study concluded that while the Judge seemed to favor plaintiffs in some cases, "[o]verall, Judge Sotomayor’s opinions defy easy categorization along ideological lines." Moreover, on the issue of her approach to the judicial role, the report concluded that the Judge's opinions displayed "adherence to the doctrine of stare decisis," "a meticulous evaluation of the particular facts at issue in a case," "adhere[nce] to the plain meaning of the text" in matters of statutory construction, and an "apparent dislike for situations in which the court oversteps the role called for by the procedural posture of a case." The remainder of the report catalogs and considers Judge Sotomayor's rulings in a number of areas from the First Amendment to Civil Rights to Search and Seizure issues to Executive Power. The report then analyzes the Judge's rulings in that area for possible trends.
This report should prove to be interesting to both sides in next month's confirmation hearings. Watch this space for updates.
"What is a Constitutional Epic?" Penelope Pether asks in her piece Comparative Constitutional Epics, 21 Law & Literature 16 (2009) and available on ssrn here. Pether (pictured below) is one of the leading lights of the discipline loosely known as law and literature, but her work is uniquely devoted to constitutional theory and to comparative constitutional doctrine. In this essay, she considers not only Robert Cover's classic article "Nomos and Narrative," but the rereading by Con Law Prof (and newly named Dean of Yale Law School) Robert Post in which Post discerns:
have held it to be,it is blood kin to his own students’ contemporary civic republicanism. Such is the horizon of the inheritors of the death of law, the faithful of popular Constitutionalism.
Id. at 108.
She also trenchantly analyzes - - - as a Constitutional Epic - - - "the massive, three-volume public version of the Report of the Events Relating to Maher Arar, produced by the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar,a Canadian national of Syrian birth who was, with the cooperation of the Canadian authorities, arrested and detained by the United States in New
York while lawfully in transit through Kennedy Airport, and “extraordinarily rendered,” to Syria, where he was imprisoned, tortured, and otherwise mistreated, even though, as the Commissioner reported, 'there is nothing to indicate that Mr. Arar committed an offense or that his activities constitute a threat to the activities of Canada.' " Id. at 114. She reads this Report against the United States Supreme Court's opinion in Arar v. Ascroft. And in the Australian context, she reads Bringing Them Home, the Report of the Australian Human Rights and Opportunity Commission’s National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, in conjunction with the Australia High Court's judgment in Kruger v. Commonwealth (The Stolen Generations case). In both instances, the "positivist" and narrow interpretations of constitutional law, she argues, are undermined by what she terms the "factions" of the reports.
Pether's discussion of these reports made me a bit less cynical about government reports and made me contemplate the ability of these documents to become "constitutional epics." As we ponder the Obama Administration's response to what might be broadly named the "torture memos controversies," Pether's arguments are worth considering. If, as she writes, "constitutional epics" express the range of our constitutional commitments, then surely they are grounds for generating profound insights about constitutional law.
Wednesday, June 24, 2009
Shortly after Justice Souter announced his retirement, I opined that if President Obama wanted to change the Court quickly, he should "find a nominee . . . that not only shares Obama's legal views and philosophy, but can also convice Justice Kennedy of the correctness of these positions." The idea was that since Justice Kennedy is the perennial "swing vote," a person that could influence him would have a great deal of influence on the Court.
Could Judge Sotomayor be that person?
Recent media reports have provided information that may be helpful in predicting the impact the nominee will have if confirmed. McClatchy newspapers posted an article entitled, "Sotomayor's take-no-guff demeanor could alter Court dynamics." Her colleauge, Judge Guido Calabresi, remarked that Judge Sotomayor is a "'wonderful colleague' who doesn't mince words. He said she had 'in a not insignificant number of cases changed my mind . . . both by charm, but mainly by the force of her legal argument.'"
Over at Slate, Emily Bazelon began her post by suggesting that Judge Sotomayor's effectiveness will be determined by her ability to influence her more conservative colleagues, particularly Justice Kennedy, to side with her in important votes. Bazelon chronicles a case - Jocks v. Tavernier - wherein Judge Sotomayor convinced the other judges on the panel to see her point of view and to eventually side with an off-duty police officer. Bazelon's analysis of the case concludes, "I'm consistently hearing that Sotomayor is forceful and assertive and plays well with her colleagues."
A final article talks about what Judge Sotomayor might bring to the bench as a Latina. The New York Times' Adam Litpak authored an article about how those in the minority affect the Court's deliberations. He quotes Justice Scalia as stating that Justice Thurgood Marshall "wouldn’t have to open his mouth to affect the nature of the conference and how seriously the conference would take matters of race.” Justice O'Connor also stated that Justice Marshall was “constantly pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth.” Moreover, Professor Mark Tushnet was quoted as saying that Justice O'Connor's very appearance at the Court "affect[ed] the way other justices responded.”
What does this mean for the deliberations that Judge Sotomayor will enter if confirmed? It could mean everything, or it could mean very little. It could mean everything because if Judge Sotomayor is able to persuade her Supreme Court colleagues in the same manner in which she influenced her peers on the Second Circuit, she will certainly be a force to be reckoned with on First Street. If she brings the same skills from New York, we must assume that she will have a chance to alter the 5-4 dymanic in her favor. However, her presence could bring very little change as well. The NYT article also goes on to note that while Justice O'Connor acknowledged Justice Marshall's persuasive abilities, she rarely voted with him in civil rights cases. Despite the presence of a woman on the Court since 1981, Justice Ginsberg was quoted in the NYT article as feeling at times that her points are not heard until someone else makes them.
Of course, we won't know the extent of Judge Sotomayor's persusive skills until she is confirmed and has been in conference with the other Justices for at least a term. But one thing is certain - a new justice will change the dynamic of the Court in some fashion. The only variables are the extent of the change and the contexts in which it may occur.
Assuming confirmation, this will be the story to watch over the 2010 term. As always, we'll keep you posted.
In an en banc decision, the Fourth Circuit vacates its earlier panel decision and a district court decision concluding the Virginia state law was unconstitutional. In Richmond Medical Center for Women [and Dr. William Fitzhigh] v. Herring, decided today, full opinion available as pdf here, the en banc court stated:
facial challenge against the Virginia Act, the challenge fails
(1) Dr. Fitzhugh’s posited circumstance does not
present a sufficiently frequent circumstance to render the Vir-
ginia Act wholly unconstitutional for all circumstances;
(2) the Virginia Act’s scienter language, although different from
the Federal Act, nonetheless provides sufficient notice to a
reasonable doctor of what conduct is prohibited by the statute;
(3) the provisions for a safe harbor and affirmative
defenses, as well as the requirement of "an overt act," ensure
that the Virginia Act will not create a barrier to, or have a
chilling effect on, a woman’s right to have a standard D&E
or her physician’s ability to undertake that procedure without
fear of criminal liability.
The court's discussion of the facial challenge, citing Marbury v. Madison, is relevant far beyond the reproductive rights context. Certainly, however, the limitation of facial challenges has been quite vigorous in the abortion context of late. Note also that the Virginia statute here, entitled the "Partial Birth Infanticide" Act, Va. CodeAnn. § 18.2-71.1(A)-(C), applies "regardless of the duration of pregnancy."
The twenty-five page dissenting opinion by Judge M Blane Michael (pictured left)
argues that the court is departing from Gonzales v. Carhart, "and long- standing precedent explicitly reaffirmed in that case hold that the Constitution protects a woman’s right to choose the standard dilation and evacuation (D&E) procedure employed in the vast majority of pre-viability second trimester abortions. The Virginia Act violates the Constitution because it exposes all doctors who perform the standard D&E to prosecution, conviction, and punishment. The Act does this by imposing criminal liability on any doctor who sets out to perform a standard D&E that by accident becomes an intact D&E." (emphasis in original).
Tuesday, June 23, 2009
The Supreme Court on Monday agreed to hear the government's appeal of a Fourth Circuit decision earlier this year that held that the government lacks authority to hold a "sexually dangerous" person beyond their prison term.
The Fourth Circuit case, U.S. v. Comstock, involved Title III of the Adam Walsh Child Protection Act, 18 U.S.C. Sec. 4248 (or just "Sec. 4248"), which authorizes the Attorney General to place in indefinite civil commitment any individual in federal Bureau of Prison custody that the AG designates as "sexually dangerous." The Fourth Circuit ruled that Sec. 4248 exceeded congressional authority; I posted on the decision here. Since then the Eighth Circuit upheld the provision in U.S. v. Tom, creating a circuit split.
The difference between the Fourth Circuit approach and the Eighth Circuit approach is this: The Fourth Circuit asked whether Sec. 4248 itself was authorized by the Commerce Clause (along with the Necessary and Proper Clause); but the Eighth Circuit asked whether Sec. 4248 was authorized only by the Necessary and Proper Clause as an appropriate mean to the end of enforcing the underlying conviction (which might be supported by any Article I authority, but most likely the Commerce Clause). In other words, the Fourth Circuit treated Sec. 4248 as a stand-alone act, an end in itself, based on the fact that Sec. 4248 operates only after an individual has served out the original sentence--i.e., after the BOP has an interest in continued confinement for anything having to do with the original offense. The Eighth Circuit, in contrast, treated Sec. 4248 as a means to an end--a way to help enforce the underlying act--in the same way that the Court held that involuntary civil commitment helped enforce the underlying indictment (but, importantly, not conviction) in Greenwood v. U.S.
If the Court sees Sec. 4248 as an end in itself (like the Fourth Circuit), Comstock would give the Court an opportunity to refine its Commerce Clause analysis under Lopez, Morrison, and Raich. But Comstock would be a particularly bad case in which to do this: The government didn't develop a Commerce Clause argument at the Fourth Circuit, and, as a result, the Fourth Circuit didn't have much to say. (The Fourth Circuit simply seemed bewildered by the government's reliance only on the Necessary and Proper Clause--an argument that sees Sec. 4248 as a means to the end of enforcing the underlying conviction and that better fits with the Eighth Circuit approach.) Even if the Court adopts this approach, we're therefore unlikely to see any dramatic new developments in the Commerce Clause coming out of this case.
If instead the Court sees Sec. 4248 as a means to an end (like the Eighth Circuit), Comstock would give the Court an opportunity to reassess the relationship between the Commerce Clause (or any Article I power supporting an underlying federal criminal law) and the Necessary and Proper Clause (which supports the related involuntary civil commitment). The key to this approach may well be Greenwood. The Court in that case ruled that Congress could authorize involuntary civil commitment for an individual found mentally incompetent to stand trial. But the civil commitment in Greenwood came before trial, at a point where the BOP still had an interest in the defendant for the underlying charge. Comstock is different: Comstock's civil commitment came after he served his time, at a point where the BOP no longer had an interest in him for the underlying conviction. (Note that Comstock's underlying conviction--possession of child pornography--is related to sex and therefore may make it easier for the Court to rule that his civil commitment as a "sexually dangerous" person was an appropriate mean to the end of enforcing the child pornography law. Under Sec. 4248, this need not have been the case. Sec. 4248 applies to anyone in BOP custody, whether they're held for a crime related to sex or not.) The government's claim in Comstock, then, is for a Necessary and Proper Clause that is somewhat broader than that which supported the civil commitment in Greenwood.
If the Court goes this latter route, as seems more likely, watch closely for its ruling and language on the scope of the Necessary and Proper Clause. If the Court holds that it extends to support Sec. 4248, this could give the government a revitalized tool that could (re-)open up congressional authority in the Commerce Clause and beyond.
Monday, June 22, 2009
The United States Supreme Court has decided Northwest Austin Municipal Utility District Number One v. Eric Holder, Jr, opinion as pdf here reversing the district judge. However, the Court, in a 8-1 opinion authored by CJ Roberts does not hold section 5 of the Voting Rights Act unconstitutional (as some had anticipated). Instead, the Court engaged in statutory interpretation to hold that "all political subdivisions—not only those described in §14(c)(2)—are eligible to file a bailout suit." (Opinion at 16).
However, in its relatively brief opinion (about 16 pages), the Court had much to say about the Voting Rights Act and the Court's own role. First, the Court made it clear that while it was "undeniable" that §5 of the Voting Rights Act had produced "historic accomplishments," the section "imposes substantial federalism costs" in terms of federal intervention, especially given that states are not treated equally ("preclearance requirements in one State would be unconstitutional in another"). The Court then stated it was "keenly mindful" of its "institutional role" balancing its respect for Congress as a coequal branch of government with the Court's duty as the bulwark of a limited constitution against legislative encroachments (citing The Federalist).
Justice Thomas dissenting in part based upon his argument that the Court should have reached the constitutional issue. The Court's opinion specifically addressed that position with citations to the lower court, the briefs, and oral argument:
The district expressly describes its constitutional challenge to §5 as being “in the alternative” to its statutory argument. See Brief for Appellant 64 (“[T]he Court should reverse the judgment of the district court and render judgment that the district is entitled to use the bailout procedure or, in the alternative, that §5 cannot be constitutionally applied to the district”). The district’s counsel confirmed this at oral argument. See Tr. of Oral Arg. 14 (“[Question:] [D]o you acknowledge that if we find in your favor on the bailout point we need not reach the constitutional point? [Answer:] I do acknowledge that”).
Opinion at 10-11.
In sum, this is a narrow opinion on a statutory basis, not likely to change Voting Rights Act litigation in any substantial manner, and not likely to change the syllabus in constitutional law courses.