Constitutional Law Prof Blog

Improv Night at SCOTUS?

We know that they are brilliant, but we now have proof that they are funny as well.  Just when you thought that every nuance of the Court and its relationships had been studied to death, now comes a report ranking The Nine based on laughter generated by their comments during oral arguments.  So who is the funniest of them all?   According to the report, the reigning champion is Justice Scalia, who elicited fifty-two laughs last term.  However, Justice Scalia may not want to rest on his laughter laurels, as Justice Breyer was close on his heels with forty-five chuckles to his credit. 

It's nice to know the Court can be simultaneously enlightening and entertaining.

NLS

 

 

White House Agrees to Release Visitor Logs

The White House announced today that it would publicly release records of White House visitors each month.  The announcement reflects the administration's settlement agreement in four Freedom of Information Act (FOIA) cases brought by the Citizens for Responsibility and Ethics in Washington (CREW), a legal advocacy organization that promotes ethics and accountability in government. CREW's press release is here; the NYT Caucus blog reports here.

CREW brought the cases after the Bush and Obama administrations declined to turn over White House visitor records in response to CREW's FOIA requests.  The administrations claimed that the records were presidential records covered by the Presidential Records Act, not agency records covered by FOIA, and therefore remain under the legal custody and control of the White House and the Office of the Vice President.

In addition, the administrations claimed that disclosing some or all of the records could reveal information protected by the presidential communications privilege.  (See United States v. Nixon and Nixon v. Administrator of General Services.)

In settling the suits, the administration did not back off these legal claims, characterizing the reports' release as "voluntary" and "discretionary."

Both the White House and CREW touted the agreement as an historic increase in government transparency.

SDS

Hot Off the Presses - New Feature

Hello!  This new feature is dedicated to highlighting the newest scholarship in Constitutional Law.  The particular emphasis is on writing that will be relevant in the classroom.   So, without further adieu, here are the first three selections for this feature:

1.   The Empirical Judiciary, A. Christopher Bryant, U. of Cincinnati College of Law

What it's about:

This article reviews the book Constitutional Fictions by David Faigman.  The book notes that the Court frequently decides issues based in part on legislative facts.   But what criteria guide the Court in deciding which facts to accept?  That is the question confronted by Faigman and critiqued by Bryant. The article notes that unlike a trial court, which must adhere to the rules of evidence in its factual determinations, the Court is not guided by any "overriding theory of when it should be deferential to other bodies - judicial and non-judicial - that have made findings of constitutional fact," and "[t]his disorder has consequences."   Bryant concludes that Faigman "improves upon the pre-existing legal literature" by suggesting more parameters for the introduction and use of legislative facts in constitutitional cases, particularly his recommendation that when annoucing a constitutional rule, the Court should assign a burden of proof for legislative facts to one of the parties.  Nevertheless, Bryant believes that Faigman's recommendation - while a wise start - still leaves some gaps and he makes some suggestions in this regard.

Why you should read it:

In my opinion, anyone interested in how the Court decides its cases would enjoy this book review. The role of facts is frequently overlooked in constitutional analysis in favor of discussions about modes of interpretation and other such issues.  However, this writing sheds light on this important subject.  While I certainly recommend reading the entire book, reading the book review will be a good introduction for those who have not considered these issues previously.  Moreover, the book review format could prove a valuable tool to introduce students to this topic, especially if your course time will only permit a brief overview of the subject.  

Where you can find it:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1461887.   (H/T to the Legal Theory Blog).

2. Human Rights at Home: Domestic Violence as a Human Rights Violation, Caroline Bettinger-López, Lecturer, Columbia Law School

What it's about:

In 2005, the Supreme Court ruled in Gonzales v. Castle Rock that the failure of Castle Rock police to respond to calls from Jessica Gonzales regarding the abduction of her daughters by their father was not a due process violation even though Ms. Gonzales possessed a restraining order.  After losing a Supreme Court case, one might think that all legal avenues of redress are closed.  However, Ms. Gonzales and her attorney, Ms. Bettinger-Lopez, did not take the Supreme Court's "no" for an answer.  Rather, the pair filed a petition before the Inter-American Commission on Human Rights arguing that “the U.S. government was responsible for violations of the American Declaration on the Rights and Duties of Man specifically the rights to life, security, family, due process, equality, truth, and freedom  from torture and cruel, inhuman, and degrading treatment."  The article chronicles the litigation at the international tribunal.

Why you should read it:

The vast majority of con law courses include Gonzales v. Castle Rock.  After reading a case with such harrowing facts and such an unsatisfactory result, many students wonder what happened next.  This writing is helpful because it answers that question.  Moreover, it is always helpful to remind students that while domestic law is the clear emphasis in law school, it is not the only route to justice in all cases. Finally, this story teaches students that a good advocate will think outside of the box for ways to further a client's goals. 

Where you can find it:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1310316   (H/T to Feminist Law Professors)

   3.The Origins of the Privileges or Immunities Clause, Part I: 'Privileges and Immunities' as an Antebellum Term of Art, Kurt T. Lash, Loyola Law (Los Angeles) 

What it's about:

As the title suggests, this article explores the origins of the Fourteenth Amendment Privileges and Immunities Clause.  Rather than summarizing, I think it best to quote from the piece directly:

Historical evidence suggests that every aspect of this commonly presented historical
account is incorrect. John Bingham did not base the final version of the Fourteenth
Amendment on Article IV, he never relied on Corfield, and he went out of his way to
distinguish the rights protected under Section One from the rights protected under Article
IV. Far from relying on the language of Article IV, Bingham’s final draft of the Fourteenth
Amendment deleted such language and replaced it with a reference to the privileges and
immunities of United States citizens, a term of art broadly understood in antebellum
America as having nothing to do with state-conferred common law rights. Justice Miller’s
reading of the Privileges and Immunities Clause in Slaughterhouse not only mirrored the
views of the man who drafted Section One, it also followed a well established strain of
antebellum anti-slavery Republican thought. 

Why you should read it:

While I think the quote above says it all, I will only say in addition that in light of the significance of Slaughterhouse, it behooves us all to learn as much about the case as possible.  This writing does much to further that objective. 

Where you can find it:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1457360  (H/T to Legal Theory Blog)

That is all for this installment.  Keep watching and we'll keep you updated on the best of new scholarship.

NLS

But what will Justice Sotomayor wear?

UPDATE: 09-09-09

For a photo of Justice Sotomayor (with Justice Ginsburg) on her first day on the bench, see SCOTUS BLOG here.

Forget judicial philosophy; enter the issue of judicial robes.

The Washington Post, in an article by Robert Barnes relating to changes and collegiality on the Court published today, reports on an interview with retired Justice O'Connor:

And O'Connor spoke of an age-old problem: what to wear. "I didn't know anybody who made robes for women justices, and I think most of what was available was something like a choir robe or an academic robe." She ended up wearing a plain black one from her days as a judge in Arizona -- and then was criticized for not wearing some sort of judicial collar underneath it.

She recalled a note from someone who said she "looked like a washed-out justice."

The article continues:

Ginsburg showed off a lace collar she said was from South Africa. "You know, the standard robe is made for a man because it has a place for the shirt to show, and the tie," Ginsburg said. "So Sandra Day O'Connor and I thought it would be appropriate if we included as part of our robe something typical of a woman. So I have many, many collars."

Although the attention for women justices may seem excessive, male judges also have choices in terms of their judicial attire. Justice Rehnquist adopted wearing stripes on his judicial robe. 

Moreover, as in other types of clothing, there are levels of luxury.  It seems, if one is to believe an article from several months ago by Erika Lovely, that there is a "Lamborghini of judicial gowns," a custom-made J-71 by the Bentley and Simon company in Virginia.   Justice Alito wears one, reportedly with silk sleeves, a gift from his alma mater.  And it seems that now-Justice Sotomayor already has one, purchased when she was appointed to the Second Circuit. 

So although the judicial robe, like other uniforms, is supposed to shift attention away from the individual in favor of the "office" the uniform conveys, there is still much attention on the person.   And perhaps this attention is magnified when the person in question is the third woman and first Latina/o on the highest court of the United States?

RR

(with thanks to Adam Francouer, CUNY Law Student, class of 2011).

Justice JP Stevens to retire?

The Washington Post, amongst others, is reporting speculations concerning the retirement of the Court's oldest Justice, John Paul Stevens:

It is tea-leaf reading time at the Supreme Court: Does Justice John Paul Stevens's decision to hire only one clerk for the term that begins in October 2010 mean this could be his last year on the court?

 

RR

Judge Rules Al Odah Detainable

Judge Kollar-Kotelly (D.D.C.) ruled last week that the government met its burden of proving that Fawzi Khalid Abdullah Fahad Al Odah is lawfully detained under the standard proffered by the Obama administration as modifiedby the D.C. District.  The court just released Judge Kollar-Kotelly's unclassified memorandum opinion today.

The case is perhaps most notable as the oldest of the pending Guantanamo habeas cases.  Al Odah filed his habeas petition on May 1, 2002, over six years before the Supreme Court ruled in Boumediene v. Bush that the privilege of habeas extended to detainees at Guantanamo Bay.

Consistent with the plurality's ruling in Hamdi v. Rumsfeld, Judge Kollar-Kotelly granted the parties' motion to rely on hearsay evidence, but denied the government's motion "to have its evidence admitted with a presumption of accuracy and authenticity."  And consistent with Judge Bates's ruling earlier this year, she partially adopted the government's definition of its detention authority, ruling out that portion of its proffered definition that would have allowed it to detain individuals who only "substantially supported" enemy forces or have "directly supported hostilities" in aid of enemy forces.

From the Conclusion:

Upon consideration of the entire record, the Government has submitted evidence showing that some individuals traveled to Afghanistan using the same route as Al Odah and that they were traveling to Al Farouq; that AK-47 training was an early part of the Al Farouq training program; that Al Farouq was evacuated shortly after September 11, 2001, when trainees were sent north toward Kabul, Jalalabad, or the Tora Bora mountains; and that the individual who transported Al Odah from the Afghnistan-Pakistan border to a camp outside of Kandahar was likely a trainer at Al Farouq.  Through Al Odah's admissions, the Government has also submitted evidence that Al Odah was brought to a camp outside of Kandahar (where Al Farouq was located) on or around September 10, 2001; that he received on day of training on an AK-47; that he was shortly thereafter evacuated and directed to travel north to Logar (a province just south of Kabul); and that he eventually traveled to Jalabad and the Tora Bora mountains.  In contrast, Al Odah has identified evidence in the record suggesting that the description Al Odah provided to an interrogator of the camp that he visited did not match the physical description of Al Farouq.  After weighing all of the evidence in the record, the Court finds that the camp to which Al Odah was transported by [redacted] was more likely than not Al Farouq.  When this evidence is considered in the context of Al Odah's travel north at the direction of [redacted], and Al Odah's subsequent activities described above, the Court finds that it is more likely than not that Al Odah became part of the forces of the Taliban and al Qaeda.

SDS