Constitutional Law Prof Blog

Interview with Ruth Bader Ginsburg in NYT

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

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

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

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

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

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

RR

Conference: Supreme Court Preview

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

 

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

 

For more information see IBRL.org here.

RR

Wisconsin Diploma Privilege and the Dormant Commerce Clause

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

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

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

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

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

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

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

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

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

NLS

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

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

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

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

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

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

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

NLS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

RR

Want to Attend the Sotomayor Confirmation Hearings?

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

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

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

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

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

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

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

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

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

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

The following items are prohibited for those attending the hearing:

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

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

RR