Saturday, October 24, 2009

More listening and more diversity needed on SCOTUS, says Justice Thomas

Justice Clarence Thomas, in a talk at the University of Alabama School of Law, yesterday


reportedly said that the Justices already know where they stand before oral argument, and asked,

"So why do you beat up on people if you already know? I don't know, because I don't beat up on 'em. I refuse to participate. I don't like it, so I don't do it."

(The recent USA Today article we discussed here described Clarence Thomas' questioning style as "silent in his seat.")

The Tuscaloosa Times reported  that Thomas also stated that he "preferred to hire law clerks from modest backgrounds," and was quoted as stating, “There are too many up there who think they should be there because they’re from an elite background.”

And as the Montgomery Advertiser reported, Thomas advocated for more diversity:

A native of Georgia and the only current justice from the South, Thomas said the court is too dominated by Ivy League lawyers and lacks regional diversity. People constantly worry about racial, gender and ethnic diversity, he said, and home states matter, too.

"My goal is to have a court that is fair, and I think it's fair when we are fair in selecting people from all parts of the country, from all walks of life," Thomas said.

The newspaper continued, however, that "Thomas graduated from the Yale University law school," adding that  "eight of the nine current justices graduated from Ivy League schools."


October 24, 2009 in Current Affairs, News | Permalink | Comments (1) | TrackBack (0)

Interracial Marriages as Children's Rights: Robson's Saturday Evening Review

There was startling news last week of a Louisiana justice of the peace who said he refused to issue a marriage license to an interracial couple out of concern for any children the couple might have.  As one of my students phrased it, "Has Loving v. Virginia been overruled?"

Woodhouse_big The judge's "concern for the children" rationale is one that is often proffered by governments.  In Reflections on Loving and Children's Rights, 20 U. Fla. J.L. & Pub. Pol'y 11 (2009), scholar Barbara Bennett Woodhouse (pictured right) and co-author Kelly Reese interpret the 1967 case of Loving v. Virginia as a landmark case in the area of children's constitutional rights.  They write:

As it touches the lives of younger generations, Loving has played a central role in the development of children's rights to equality, privacy, agency, dignity and protection.

How can a case about marriage have such a broad legacy for children? Children define themselves and are defined by law in relation to those who bring them into the world, who claim them as their own and who guide their upbringing. Because of Loving and the cases that followed from it, the current generation of children, like no other before, enjoys the right to equal protection of the laws, regardless of the race or marital status of their parents. This generation also enjoys, as never before, the liberty to envision building families free from state-sanctioned discrimination. Nevertheless, pockets of discrimination remain, marginalizing many children who are growing up in nontraditional families and preventing many children from equal access to the benefits of a legally recognized family relationship. As long as these forms of discrimination continue, the legacy of Loving will remain unfulfilled.

They argue that marriage operates as a "gatekeeper" to children's rights, even though many of the disabilities of children born "out of wedlock" have been whittled away using constitutional doctrine.  They extend their argument to the children of same-sex couples, including the wedge issue of adoption.  Most interesting in this short piece are some of the observations by Barbara Bennett Woodhouse regarding advocacy, teaching, and personal experiences. 

There have been many calls for sanctions against the Louisiana Justice of the Peace and the couple has reportedly sued him.  Perhaps the judge could be required to read Loving v. Virginia as well as the article by Woodhouse and Reese; perhaps he might be required to a responsive reflection.


October 24, 2009 in Current Affairs, Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Race, Scholarship, Sexuality | Permalink | Comments (0) | TrackBack (0)

Friday, October 23, 2009

Of Marriage, Monopolies, and Federalism

Do the states have a marriage monopoly?

Picture 2

That's the intriguing question posed by Adam Candeub and Mae Kuykendall, of Michigan State University College of Law, in their new article,  E-Marriage: Breaking the Marriage Monopoly.

They argue:

States inadvertently have created geographic monopolies, requiring each marriage receiving the benefits of their licensing laws to be performed within their borders. This Article's model builds upon established precedents, such as proxy marriage and choice of law for multi-jurisdictional and internet contracts. Using the power of internet communications, our proposal allows states to compete over marriage's procedures and substance. Depending on a couple's preferences for "e-ritual" and a state's desired level of regulatory control, couples could consume the trappings of a traditional ceremony before their friends and family, without travelling to another jurisdiction, perhaps with an officiant presiding on-line from a remote location. More simply, couples could have a complete marriage ceremony in the location of their choice, but would receive a license and file necessary papers with a distant state jurisdiction.

They are publicizing their proposal with a press release here and article soon to be posted on ssrn here (abstract available now).


October 23, 2009 in Dormant Commerce Clause, Family, Federalism, Scholarship, Sexuality, State Constitutional Law, Travel | Permalink | Comments (0) | TrackBack (0)

Thursday, October 22, 2009

Habeas, Indefinite Detention, and the Uighurs Head to the Court

The Supreme Court this week granted cert. in Kiyemba v. Obama, the habeas case of the Uighurs, the Chinese Muslims held now for over eight years at Guantanamo Bay.

Some background:  Judge Urbina (D.D.C.) ruled last October on the Uighur's habeas petition that the government must release them into the United States.  (The government then no longer considered the Uighurs detainable as terrorists, although it did fear that they might pose a threat in the United States.  Why?  Because they were sufficiently angry about being wrongly detained for so long (!).)

The government immediately appealed to the D.C. Circuit, arguing that Urbina lacked authority to order the Uighurs' release into the United States.  The government argued that the order interfered with the political branches' authority over immigration--a separation-of-powers principle.  The D.C. Circuit agreed and reversed Urbina's order, leaving the Uighurs in limbo.

Meanwhile, the Uighurs petitioned the Obama administration for release.  The then-new administration rejected the request as it worked out its new detention policies.  (The administration subsequently relocatedfour Uighurs to third countries.  It apparently couldn't find homes for the others.)

The remaining Uighurs petitioned the Supreme Court for review, and the Court just this week granted cert.

The case now raises critical questions of the executive's authority to indefinitely detain, the courts' authority to order detainees' release on habeas in the wake of Boumediene v. Bush (holding that the privilege of habeas extends to detainees at Guantanamo Bay), and the courts' authority to order release into the United States--substantial issues, and ones that the administration might like to avoid.

The certified question presented opens the door for each of these:

Whether a federal court exercising its habeas jurisdiction, as confirmed by Boumediene v. Bush . . . has no power to order the release of prisoners held by the Executive for seven years, where the Executive detention is indefinite and without authorization in law, and release into the continental United States is the only possible effective remedy.

The government has taken the position on cert. that the Uighurs are free to leave Guantanamo to go anywhere but the United States.  (Reading the government's brief opposing cert., you'd be excused for believing that the Uighurs are at Guantanamo on vacation.)  The problem: nobody will take them.  According to the government, this is a problem for the political branches, not the courts on habeas.  But as the Uighurs ask: if the courts can't order release into the United States, of what value is habeas?  And more: this amounts to illegal and unconstitutional indefinite detention.  (Thanks to SCOTUSwiki for links to the cert. filings.)

The Obama administration could potentially moot the case and avoid a high Court ruling by relocating the Uighurs (within the United States, or elsewhere) and closing Guantanamo--a task apparently much easier said than done.


October 22, 2009 in Executive Authority, Foreign Affairs, News, Recent Cases, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

English Only Consumer Protection Defeated

Subject_English The proposed Consumer Financial Protection Agency Act of 2009, HR 3126, would establish the Consumer Financial Protection Agency as an independent executive agency to regulate the provision of consumer financial products or services.   The bill was approved by the House Financial Services Committee today, but only after a robust markup.

One amendment was offered by Representative Chris Lee, R-NY, seeking to strike a provision regarding consumer protection  "language accessible materials for non-English speakers" and to prohibit the Agency from requiring any disclosures in any language other than English.  The amendment was defeated 40 - 29 (see item 38, HR 3126 here).

For an excellent discussion of the status and constitutionality of a wide array of English-only laws and policies in the United States, see Watch Your Language! The Kansas Law Review Survey of Official-English and English-Only Laws and Policies, 57 U. Kan. L. Rev. 669 (2009).


October 22, 2009 in Current Affairs, Due Process (Substantive), Equal Protection, News | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 21, 2009

ABA President Calls for Civil Gideon

ABA President Carolyn Lamm called for a constitutional right to counsel in civil cases involving basic human needs, a "Civil Gideon," in the President's Message in the October 2009 ABA Journal.

Lamm argues that Civil Gideon is a part of a broader strategy, including increased pro bono efforts and increased legal aid funding, in meeting dire legal needs in the current economic crisis:

But we must do much more. Lawyers and advocates nationwide have been working hard, with ABA support, for the right to counsel in civil matters where basic human needs are at stake—a “civil Gideon” policy. They are making progress case by case, state by state, jurisdiction by jurisdiction. Most recently, in the Alaska Supreme Court case of Office of Public Advocacy v. Alaska Court System, the ABA filed an amicus brief supporting civil Gideon. This fundamental right must be recognized by courts and legislatures—and fully funded.

The ABA's amicus brief in Office of Public Advocacy is here.  See more here on the effect of the economic crisis on access to justice issues.

The issue may come to the Supreme Court this term.  Earlier this month, in a highly unusual move, the Court asked the Texas Solicitor General for views at the cert. stage on Rhine v. Deaton, a civil right to counsel case involving a Texas mother's private custody dispute with temporary foster parents.  See more here and here.  The Court has not previously recognized a categorical right to counsel under the federal Constitution; instead, it created a barrier to such a right under Fourteenth Amendment procedural due process in Lassiter v. Department of Social Services

Lamm's article comes the same month that the state of California enacted legislation to provide for a pilot program providing a civil right to counsel in cases involving basic human needs.  In the bill, the California legislature made its own finding that a civil right to counsel in these cases is supported by constitutional demands for equality and equal access to justice.

California now joins several states that, through their judiciaries or state legislatures, have arrived at similar conclusions.  Perhaps the time is right for Civil Gideon to bubble up to the Fourteenth Amendment in Rhine.


October 21, 2009 in Due Process (Substantive), Equal Protection, Fourteenth Amendment, Fundamental Rights, News, Procedural Due Process, Recent Cases, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)

Torture and Academic Freedom

The controversy over John Yoo's professorship at UC-Berkeley School of Law (Boalt Hall) continues

The PBS News Hour aired a segment yesterday, available as mp3 audio, streaming video and transcript here.

Picture 1


October 21, 2009 in News, Profiles in Con Law Teaching, State Secrets, War Powers | Permalink | Comments (1) | TrackBack (0)

Tuesday, October 20, 2009

American Constitution Society Symposium on National Security and Human Rights

The American Constitution Society last week hosted an outstanding half-day symposium titled National Security & Human Rights: Progress, Problems and Possibilities.  The link contains video and audio of the event.  Here's the description:

As the 5th anniversary of the Military Commissions Act approaches, and a few months after the 60th anniversary of the Geneva Conventions, the American Constitution Society for Law and Policy (ACS) hosted a half-day symposium on national security and human rights issues. The symposium included two panel discussions with a diverse array of experts and a keynote address by Assistant Attorney General David Kris.

The morning panel, "Justice for Detainees: A Work in Progress?" featured Deborah Pearlstein, moderator, Visiting Faculty Fellow, University of Pennsylvania Law School; Jameel Jaffer, Director, ACLU National Security Program; Richard D. Klingler, Partner, Sidley Austin LLP; Joanne Mariner, Director, Terrorism and Counterterrorism Program, Human Rights Watch; and Hope Metcalf, Lecturer and Project Director, National Litigation project of the Lowenstein International Human Rights Clinic, Yale Law School.

The keynote address was given by Assistant Attorney General for National Security David Kris. The afternoon panel, "The State Secrets Privilege: A Case for Reform?" featured David Cole, moderator, Professor of Law, Georgetown University Law Center; Amanda Frost, Associate Professor of Law, American University Washington College of Law; David Rivkin, Partner, Baker and Hostetler LLP; Co-Chair, Foundation for Defense of Democracies Center for Law and Counterterrorism; Vincent Warren, Executive Director, Center for Constitutional Rights; and Ben Wizner, Staff Attorney, ACLU National Security Program.


October 20, 2009 in Conferences, Executive Authority, News, State Secrets, War Powers | Permalink | Comments (0) | TrackBack (0)

Joan Biskupic on Stevens and Questioning Styles

USA Today's article on Justice Stevens reports he is keeping his retirement cards "close to his robes," although at age 89 it is "no secret" he might leave the Court. 

The piece by Joan Biskupic is based on a 75 minute interview with Justice Steven and shares a number of interesting quotes:

"We're getting to a point that our cases are revisiting issues that I wrote on 10, 20, 30 years ago," he says. "I really have felt pretty good about re-reading the opinions I wrote many years ago. I have to confess that."

There is also an interactive feature by Joan Biskupic on all of the Justice's questioning styles during oral arguments:

Hydra-headed hypos from Justice Breyer?  

This makes a nice link to post on your course website for students to enjoy.


October 20, 2009 in Current Affairs, Games, News, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Monday, October 19, 2009

Medical Marijuana

The Department of Justice has announced a new policy regarding federal prosecutions of the use of marijuana permitted under state law for medical reasons. 

In a memo released today to federal prosecutors, David W. Ogden, Deputy Attorney General, states:

The prosecution of significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks continues to be a core priority in the Department’s efforts against narcotics and dangerous drugs, and the Department’s investigative and prosecutorial resources should be directed towards these objectives. As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources.

This memo solidifies Attorney General Holder's statements we discussed last February that prosecutions of the use of medical marijuana would not be a priority in the new Administration.  


There is also a continuing discussion - - - although apparently not in the current DOJ - - - regarding the decriminalization of marijuana, including substantive due process arguments.


October 19, 2009 in Commerce Clause, Due Process (Substantive), Federalism, Medical Decisions | Permalink | Comments (2) | TrackBack (0)

The Federalist Society Annual Convention

The Federalist Society's National Lawyers Convention is scheduled for Thursday, November 12 through Saturday, November 14, 2009 at the Mayflower Hotel, with its theme of

 "The Federal Government's Economic Role in our Constitutional System."

Picture 3

Speakers include Justice Samuel Alito (dinner speaker), Judge Douglas H. Ginsburg of the U.S. Court of Appeals, D.C. Circuit (Barbara K. Olson Memorial Lecture), Senator Jeff Sessions (opening remarks), and John Yoo (on a panel entitled "Professional Responsibility: The Role of Government Attorneys and the Global War on Terror").

A full program and registration details are available here.


October 19, 2009 in Conferences | Permalink | Comments (0) | TrackBack (0)

Sunday, October 18, 2009

U. Akron Law Celebrates Fourteenth Amendment's 140th

The University of Akron and The Akron Law Review put together an impressive and diverse group of scholars last year to celebrate the 140th anniversary of the Fourteenth Amendment.  A good number of the papers touch on incorporation and the Privileges or Immunities and the Due Process Clauses--issues before the Court this term in McDonald v. City of Chicago, the Second Amendment case out of the Seventh Circuit.  See also here, here, herehere, and here.

The Akron Law Review web-site doesn't yet link to the articles in the volume, so I tracked down those I could on SSRN.  All of the authors have written other works on the Fourteenth Amendment--in some cases extensively--so I've linked their SSRN pages (on their names), as well.

Elizabeth A. Reilly, Infinite Hope Introduction to the Symposium: The 140th Anniversary of the Fourteenth Amendment

Richard L. Aynes, The 39th Congress (1865-1867) and the 14th Amendment: Some Preliminary Perspectives

Elizabeth A. Reilly, The Union as it Wasn't and the Constitution as it Isn't: Section Five and Altering the Balance of Powers

David Skillen Bogen, Rebuilding the Slaughter-House: The Cases' Support for Civil Rights

James W. Fox, Fourteenth Amendment Citizenship and the Reconstruction-Era Black Public Sphere


October 18, 2009 in Due Process (Substantive), Fourteenth Amendment, Fundamental Rights, Privileges and Immunities, Scholarship | Permalink | Comments (0) | TrackBack (0)