Friday, April 23, 2010

Arizona Immigration Law SB 1070

The "Support Our Law Enforcement and Safe Neighborhoods Act," Arizona SB1070, just [update here; update on proposed change here] signed by Governor Jan Brewer, is the "toughest" anti-immigration state law in the United States.

Constitutional challenges are sure to follow. [update here; DEPARTMENT OF JUSTICE lawsuit analysis update here].  UPDATE: PORTIONS OF STATUTE ENJOINED BY FEDERAL DISTRICT JUDGE.

State laws seeking to regulate immigration status are always subject to preemption challenges given the federal government's plenary power over immigration and nationality.  Moreover, equal protection challenges to immigration regulations by states will be scrutinized more carefully by the courts than regulations by the federal government.  A good overview of these issues is by Juliet Stumpf, States of Confusion: The Rise of State and Local Power over Immigration, available on ssrn here.


The new Arizona law allows state officials to inquire into the immigration status of any person based upon "reasonable suspicion":

For any lawful contact made by a law enforcement official or agency of this state or a county, city, town or other political subdivision of this state where reasonable suspicion exists that the person is an alien who is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person.

The statute also prohibits localities from adopting any policies that allow less than full enforcement of the immigration laws, thus prohibiting so-called sanctuary provisions.

Additionally, section 13-1509 provides that a person is guilty of the crime of trespassing if the person is both:  "present on any public or private land in this state" and in violation of federal immigration statutes.  The statute further provides that there is no eligibility for "suspension or commutation of sentence or release on any basis until the sentence imposed is served."

The statute also has an anti-solicitation of workers (often called day laborers) provision of the type that has been held unconstitutional under the First Amendment, see Town of Herndon v. Thomas, MI-2007-644 (Va. Cir. Ct. Aug. 29, 2007) Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 475 F. Supp. 2d 952, 962 (C.D. Cal. 2006).

The statute has already garnered some critical commentary from our colleagues on Immigration Law Prof.  MALDEF has issued a statement that it will challenge the statute.  The United States Department of Justice will reportedly examine the constitutionality of the statute as instructed by President Obama.


April 23, 2010 in Equal Protection, Federalism, Fourteenth Amendment, Fundamental Rights, News, Preemption, Race, Supremacy Clause, Travel | Permalink | Comments (134) | TrackBack (0)

Congress to Respond to Citizens United

Earlier this week, Reps. Chris Van Hollen (D-MD) and Mike Castle (R-DE) announced that they reached a bipartisan agreement to move forward with a legislative response to Citizens United v. FEC, the January 21 case that applied the First Amendment to corporations and overturned campaign spending limits on corporations and labor unions.  We last posted on that case and a subsequent D.C. Circuit ruling here.

The Blog of the Legal Times reported today that legislation may emerge next week.  According to the report, the legislation moves to increase transparency by requiring additional reporting and disclosure (including an "approves this message" statement to go along with campaign communications).  (Citizens United itself upheld disclaimer and disclosure requirements.)  The legislation will reportedly also limit coordination between a candidate and outside groups on communications that reference a candidate, and restrict certain federal contractors from spending money on elections.

The legislative text isn't yet available, but we'll post it when comes out.


April 23, 2010 in Congressional Authority, Elections and Voting, Fundamental Rights, Recent Cases | Permalink | Comments (0) | TrackBack (0)

The Latest Challenge to Indiana's Voter ID Law

The U.S. District Court for the Southern District of Indiana last week dismissed the latest attack on Indiana's voter ID law in Stewart v. Marion County.  (Thanks to Election Law Blog for the link.)  Recall that the Supreme Court upheld the law against an Equal Protection/fundamental rights challenge nearly two years ago in Crawford v. Marion County, but the Indiana Court of Appeals (the state's intermediate appellate court) overturned the law last fall under the state constitutional "Equal Privileges and Immunities Clause."  (The Indiana Court of Appeals ruling is now before the state supreme court.  We don't yet have a ruling.)


In Stewart, the district court rejected the plaintiff's claims under the Twenty-Fourth Amendment (ruling that the ID law did not amount to a poll tax), the Fourth Amendment (ruling that the ID law did not constitute a search), and the First and Fourteenth Amendments (ruling that these claims were already foreclosed by Crawford at the Seventh Circuit and at the Supreme Court).  The court also rejected Stewart's claim under the federal Privacy Act. 

Stewart's claims might have gotten somewhat more traction if Stewart didn't have an ID.  Yes, that's right: Stewart lacked standing.

This is rather remarkably in the wake of Crawford.  That case, to be sure, was no model of clarity in reasoning and result, but between the several opinions in that case--and with the well settled doctrine that a plaintiff must have standing (!)--subsequent challengers to Indiana's voter ID law should have understood, at least, that they needed to plead with some particularity that they have been harmed.

Whatever else might be said about Crawford, the opinions together provide a pretty clear roadmap for plaintiffs seeking to challenge voter ID laws (and similar broadly applicable laws designed to ensure the integrity of the voting process).  For example, the Court pretty clearly told future plaintiffs that they need to lodge an as-applied (not facial) challenge if they want to get out of the starting gate.  The Court also pretty clearly told future plaintiffs that they need to have specific evidence supporting their alleged harms.  And it clearly told future plaintiffs that they need to have standing. 

In contrast to Stewart, the plaintiffs in Rokita, the case now before the Indiana Supreme Court on state constitutional grounds, read Crawford's roadmap well and presented their case accordingly.  This, along with the stronger bite of the Indiana state constitution, led to the favorable result in the intermediate appellate court.

Stewart's failure to follow Crawford's roadmap could have resulted in positively bad law for future challengers of voter ID.  In some ways, it did: The district court wrote more than it needed to about, e.g., the Twenty Fourth Amendment in rejecting Stewart's claims.  (The court could have dismissed the case with much less substantive analysis, given Stewart's lack of standing, and thus avoided dicta unfavorable to future plaintiffs.)  But Stewart's case was apparently so badly flawed that the ruling will likely have little impact on any future federal cases.

One thing is for certain: The case will not have any impact on Rokita, the case pending at the Indiana Supreme Court.  In addition to carefully heeding Crawford, plaintiffs in that case tailored their claims under state constitutional law, and the state supreme court will thus rule only under the state constitution. 

The three cases--Crawford, Rokita, and Stewart--together provide a nice study in how to litigate (and how not to litigate) constitutional questions.


April 23, 2010 in Elections and Voting, Equal Protection, Fourteenth Amendment, Fundamental Rights, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Thursday, April 22, 2010

Constitutional Law Exam Drafting: The End of Semester Challenge

For professors, ConLaw and otherwise, 'tis the season to draft the final exam.  




Here are some principles, hints, reminders, observations, and opinions:

1/    Using another professor's exam is pedagogically unsound, unless, of course, your students attended another professor's class all semester.   This is true even if the other professor is now President of the United States.

2/    Recycling one of your own exams is pedagogically suspect.  Even if you attempted to keep your previous exam questions secret and for some reason eschewed the better practice of distributing previous exam questions to students for their studying purposes), if they can find Professor Obama's exam from 1996, they can find your previous exams.  And do.

3/     Selecting the format of the exam is most likely no longer an option, because your syllabus stated (didn't it?) whether the exam would be essay, open-book, short essays, or multiple choice. (True/False, let's face it, is not a viable option past the third grade.)   Because you have integrity, your syllabus reflects your choice of the exam style which you believe is most pedagogically sound.  Therefore, this is not the time to regret your choice because "grading" multiple choice exams is infinitely easier than grading essays.   You enjoy grading, don't you? 

3/    Looking at your own after-class notes (which, let's assume, you diligently kept), will refresh your memory of the issues that this year's students found particularly interesting, troubling, or worthwhile.  These experiences can help you tailor the exam to this year's students and make their experience unique.  It can also improve attendance in future semesters.

4/    Reviewing the in-class problems or exercises you did with your students during the semester is a great source of exam material.   Again, let's assume you assigned several problems.  One or two?

5/    Reflecting current controversies, especially those that have been newsworthy, can be a great strategy in drafting an exam. It can provide details, but it can also frame the narrative of your exam.  And you do want your exam to be interesting, don't you?  This semester, as we noted earlier this month, health care reform is an obvious choice, and not only because a 900 page statute provides lots of possibilities.

6/    Remembering to provide ALL the specific material and explanations students would need to answer the exam question(s) is vital.  This is especially important if you are using a current controversy, but applies whenever you draft a question.  For example, if you've decided on health care as the underlying topic, you don't want students to be pondering the definition of  "CHIP" or rewarding students who know the meaning of  "CHIP" when what you mean to be testing is federalism or commerce clause issues.

7/    Testing what you've taught seems an obvious, if not universally-shared goal.  Can you key every issue, analysis, and answer to your syllabus?  You should do this with colored highlighters. 

8/     Rereading your exam from the perspective of a student is a great exercise.  Try to channel the students with whom you least identify as you read.  Would he be offended by your attempt to be witty?  Would she not understand your cultural allusion? 

9/    Writing out your rubric (or feedback sheet) for essay exams is essential.  But also write out an answer to the exam question(s).  Do it in the time allotted.  And if you are giving a closed book exam, then no peeking.

10/    Grading your own answer with your feedback sheet and then keying it to your syllabus and the pages of the Casebook and other assigned materials should keep you honest.  You'll probably give yourself an "A," but did you do as well as you thought you would?

11/   Collaborating with another professor after you have a written your almost-final draft is an amazing experience.   You must know colleagues who teach in the same area?   Trading exams can produce a great discussion, especially if you disagree with each other.  As for taking each other's exams, well, that can also produce a discussion.

12/    Consulting with Academic Support can provide support for you as well as for your students.  If you are lucky enough to have involved Academic Support Professors, as I am, their expertise is a gift you shouldn't refuse.  If you haven't had the opportunity to have lunch with someone from Academic Support this semester, now would be a good time.

13/    Proofing and reproofing cannot be neglected, especially given all the revisions you've been doing.  "Fresh eyes," as they say, are a real asset.  Now is the time to enlist any friends you have who are not involved in the law.  You do have some friends outside the law, don't you? 

Good luck!


April 22, 2010 in Teaching Tips | Permalink | Comments (1) | TrackBack (0)

Administration Re-Strengthens Title IX

The White House announced earlier this week that it was strengthening Title IX, the provision that prohibits sex discrimination by educational institutions that receive federal funds, through a new "dear colleague" letter to covered institutions providing guidance on compliance.  The letter withdraws a 2005 letter that advised covered institutions to measure compliance with Title IX through a single instrument--a survey of student interest in participating in intercollegiate sports--and reinstated a multi-factor approach to compliance.

The 2005 survey instrument undercounted women's interests in participating and thus resulted in schools underfunding women's sports.  The new letter reinstates the multi-factor approach to more accurately account for women's interests.

Earlier executive policy interpretations of Title IX in 1979 and 1996 both set out a three-part test used to determine whether a covered institution violates its obligations under Title IX with respect to intercollegiate athletics:

1.  Whether intercollegiate level participation opportunities for male and female students are provided in numbers substantially proportionate to their respective enrollments; or

2.  Where the members of one sex have been and are underrepresented among intercollegiate athletes, whether the institution can show a history and continuing practice of program expansion which is demonstrably responsive to the developing interests and abilities of the members of that sex; or

3.  Where the members of one sex are underrepresented among intercollegiate athletes, and the institution cannot show a history and continuing practice of program expansion, as described above, whether it can be demonstrated that the interests and abilities of the members of that sex have been fully and effectively accommodated by the present program.

As stated in the 1996 guidance, "[T]he three-part test furnishes an institution with three individual avenues to choose from when determining how it will provide individuals of each sex with nondiscriminatory opportunities to participate in intercollegiate athletics.  If an institution has met any part of the three-part test, [the Office of Civil Rights, which enforces Title IX] will determine that the institution is meeting its requirement."

In determining compliance with part three of this test, OCR considered multiple factors under the 1996 guidance.  The 2005 guidance changed this and advised institutions to look to just one factor: the results of a survey. 

But the survey tended to undercount female interest in sports.  The Department of Education wrote this about it:

After careful review, OCR has determined that the 2005 Additional Clarification and the User's Guide are inconsistent with the nondiscriminatory methods of assessment set forth in the 1979 Policy Interpretation and the 1996 Clarification and do not provide the appropriate and necessary clarity regarding nondiscriminatory assessment methods . . . .

The most recent guidance reinstates the multi-factor approach, more accurately reflecting women's interests in intercollegiate sports.  As to the third part of the test, the new guidance asks three questions: Is there an unmet interest in a particular sport?  Is there sufficient ability to sustain a team in the sport?  Is there a reasonable expectation of competition for the team?  These questions, in turn, look to several factors, including answers to a survey (the value of which itself is measured by several factors).


April 22, 2010 in Congressional Authority, Executive Authority, Gender, News | Permalink | Comments (0) | TrackBack (0)

Denny Chin Confirmed to Second Circuit

The strategy to move forward with "noncontroversial" nominations such as that of Denny Chin, as we previously discussed, provided some success today.  Chin was confirmed as a Second Circuit Judge by a vote of the Senate, 98-0.


April 22, 2010 in Appointment and Removal Powers, News | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 21, 2010

District Judge Nominations and Third Circuit Confirmation

Obama nominated five persons for district judge today:

  • Judge Leslie E. Kobayashi, presently a Magistrate Judge, for the District of Hawai'i;
  • Judge Susan Richard Nelson, presently a Magistrate Judge, for the District of Minnesota;  Ellen-Lipton-Hollander-gov-108x150
  • Judge Ellen Lipton Hollander (pictured right)  presently a state appellate judge, for the District of Maryland;
  • Judge James K. Bredar, presently a Magistrate Judge, for the District of Maryland;   and
  • Edmond E. Chang, presently an Assistant US Attorney General for the Northern District of Illinois.

This is an addition to the more than one hundred current judicial nominations pending.  Our most recent post is here.

Today, the Senate did confirm District Judge Thomas Vanaskie,  as a Judge on the Third Circuit Court of Appeals.  


April 21, 2010 in Appointment and Removal Powers, Current Affairs, News | Permalink | Comments (0) | TrackBack (0)

Court Holds on Attorney's Fees, Access to Justice

The Supreme Court ruled today in Perdue v. Kenny that an attorney's fee may in exceptional circumstances be increased due to the attorney's superior performance.  The case reaffirms the Court's prior rulings and validates an important component of equal access to justice for civil rights plaintiffs.

The case involved the mistreatment and abuse of children in Georgia's foster care system.  The plaintiff-class of 3,000 children sought to revamp the system, which failed to provide essential medicines, failed to properly staff facilities, and failed to maintain facilities.  These problems resulted in unnecessarily suffered permanent medical conditions, physical assaults, including rape, and even child prostitution, according to the record.

Plaintiffs sought injunctive and declaratory relief for violations of state and federal constitutional and statutory law and attorney's fees under 42 U.S.C. Sec. 1988.  That provision authorizes attorney's fees for prevailing parties in federal civil rights actions and thereby helps ensure that civil rights plaintiffs (who often can't afford attorney's fees) can get an attorney to press their case.

After mediation, the parties entered into a consent decree, and plaintiffs' counsel submitted a request for more than $14 million in attorney's fees.  The district court awarded lodestar fees of approximately $6 million, representing the attorney's hours worked times the prevailing hourly rate.  The court then added a 75% premium onto the lodestar calculation for superior performance.  The court justified the premium based upon counsel's significant advance of funds to cover case expenses, counsel's lack of pay for the work during the course of litigation, and counsel's inability to recover fees and expenses without winning the case.  But most of all, the district court wrote that plaintiffs' attorneys exhibited "a higher degree of skill, commitment, dedication, and professionalism . . . than the Court has seen displayed by attorneys in any other case during its 27 years on the bench."  The premium bumped the total fee award up to about $10.5 million.

The Supreme Court ruled that attorneys for civil rights plaintiffs may be awarded increases to the lodestar in extraordinary circumstances, but that the district court failed to adequately explain how it arrived at the increase in this case.  (Justice Alito, for the 5-justice majority, asked, "Why, for example, did the court grant a 75% enhancement instead of the 100% increase that respondents sought?  And why 75% rather than 50% or 25% or 10%?")

(Justice Breyer wrote in dissent (joined by Justices Stevens, Ginsburg, and Sotomayor) that the Court should have simply affirmed the district court's award, deferring to its judgment on the fees.)

The case is a limited victory for equal access advocates, as it reaffirms that civil rights attorneys may be awarded increases to the lodestar in exceptional circumstances for superior performance--that civil rights attorneys may be properly compensated for their work, and that poor civil rights plaintiffs, too, can access superior advocates who are appropriately well compensated.


April 21, 2010 in Fundamental Rights, Recent Cases | Permalink | Comments (1) | TrackBack (0)

Tuesday, April 20, 2010

DOJ to Defend VRA Section 5 "Vigorously"

AAG Tom Perez told the Senate Judiciary Committee this morning that the Civil Rights Division is gearing up for the increased Voting Rights Act workload after the Census and is prepared to defend Section 5, the preclearance provision, "vigorously" against a suit filed earlier this month.

That case grows out of DOJ's denial of preclearance to the City of Kinston, North Carolina, to its requested change from partisan to non-partisan elections for mayor and city council.  Kinston is comprised of about 60% black residents, but black persons constituted a minority of voters in three recent city elections and a bare majority in a fourth recent election.  Sixty-four percent of Kinston voters approved the change from partisan to non-partisan voting; the referendum passed in 5 of the 7 precincts where blacks are a majority.

The DOJ denied preclearance, and the City declined to appeal.  The case was filed by the Center for Individual Rights on behalf of several voters and local politicians.

DOJ denied preclearance because of the likely impact on black persons' ability to elect candidates of their choice:

Black voters have had limited success in electing candidates of choice during recent municipal elections.  The success that they have achieved has resulted from cohesive support for candidates during the Democratic primary (where black voters represent a larger percentage of the electorate), combined with crossover voting by whites in the general election.  It is the partisan makeup of the general electorate that results in enough white cross-over to allow the black community to elect a candidate of choice.

This small, but critical, amount of white crossover votes results from the party affiliation of black-preferred candidates, most if not all of whom have been black.  Numerous elected municipal and county officials confirm the results of our statistical analyses that a majority of white Democrats support white Republicans over black Democrats in Kinston city elections.  At the same time, they also acknowledged that a small group of white Democrats maintain strong party allegiance and will continue to vote along party lines, regardless of the race of the candidate.  Many of these white crossover voters are simply using straight-ticket voting.  As a result, while the racial identity of the candidate greatly diminishes the supportive effect of the partisan cue, it does not totally eliminate it.

It follows, therefore, that the elimination of party affiliation on the ballot will likely reduce the ability of blacks to elect candidates of choice. . . .

The change to nonpartisan elections would also likely eliminate the party's campaign support and other assistance that is provided to black candidates because it eliminates the party's role in the election. . . .

Plaintiffs in the case argue that Section 5 is unconstitutional and that it violates equal protection principles.  From the complaint:

21. In July 2006, Congress reauthorized Section 5, extending it for twenty-five years (until 2031).  It relied on generalized findings which do not specifically identify evidence of continuing intentional discrimination in covered jurisdictions.  Nor did it have evidence that adequately distinguished conditions in covered jurisdictions from those in non-covered jurisdictions in a way that would justify the continuing difference in treatment for another 25 years.

22. The conditions of 1964 that caused Lenoir County [the home of Kinston] to be covered by Section 5 have long been remedied. . . .

The case puts the constitutionality of Section 5 squarely before the court.  It avoids Section 5 bailout, which allowed the Supreme Court last term in Northwest Austin to dodge the constitutional question and rule on statutory grounds that the municipal utility district qualified for bailout.  The complaint also draws on dicta from Northwest Austin critical of Section 5, anticipating the arguments should the case reach the high court.


April 20, 2010 in Congressional Authority, Federalism, Fifteenth Amendment, Fourteenth Amendment, Fundamental Rights, News, Race, Recent Cases, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)

DOJ Civil Rights Chief to "Restore" and "Transform" Division

Assistant Attorney General Tom Perez told the Senate Judiciary Committee this morning that he intends to restore and transform the Civil Rights Division, a unit hit hard by a loss of 70% of career attorneys between 2003 and 2007 and sharply curtailed enforcement efforts between 2001 and 2007.  Perez intends to hire 102 new career attorneys "to tackle both existing and emerging challenges for civil rights in the 21st Century."  "That means enforcing all of the laws within our authority."

Perez specifically mentioned these, in order: fair housing and lending; criminal enforcement of hate crimes; employment discrimination; disability rights; civil rights of institutionalized persons; discriminatory policing; voting rights; educational opportunities; religious freedom; and gay rights. 


April 20, 2010 in Congressional Authority, Fundamental Rights, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Crush Porn, Animal Cruelty, and US v. Stevens: Opinion Analysis

Congressional enactment of 18 U.S.C. § 48 (1999) was motivated by a concern about so-called "crush porn."  As the House Committee Report  explained it, crush porn videos

feature the intentional torture and killing of helpless animals, including cats, dogs, monkeys, mice, and hamsters. Crush videos often depict women slowly crushing animals to death “with their bare feet or while wearing high heeled shoes,” sometimes while “talking to the animals in a kind of dominatrix patter” over “[t]he cries and squeals of the animals, obviously in great pain.”  Apparently these depictions “appeal to persons with a very specific sexual fetish who find them sexually arousing or otherwise exciting.”

H. R. Rep. No. 106–397, p. 2 (1999).   Robert Stevens was not a crush porn aficiando, but the purveyor of videos of pit bulls engaging in dogfights through his business, "Dogs of Velvet and Steel."  Roberts' conviction was reversed by the Third Circuit.

Except for Justice Alito, the Justices of the United States Supreme Court this morning concluded that the Congressional expression of that concern by criminalizing the creation, possession, or distribution of " a depiction of animal cruelty" does not withstand a constitutional challenge. 

In a relatively brief 8-1 opinion authored by CJ Roberts, the Court declined to "carve out" an animal cruelty exception (similar to the child pornography exception) to obscenity analysis under the First Amendment.  The Court found § 48 to be of "alarming breadth."  It also noted that the criminal law could operate to criminalize popular hunting television programs, a topic that was explored during the oral argument. Alito's dissent, with Appendix of state animal cruelty statutes, argues that the "animal" in animal cruelty statutes specifically excludes wildlife or lawful hunting.

The Court also had an interesting observation regarding prosecutorial discretion:

Not to worry, the Government says: The Executive Branch construes §48 to reach only “extreme” cruelty,Brief for United States 8, and it “neither has brought nor will bring a prosecution for anything less,”  The Government hits this theme hard, invoking its prosecutorial discretion several times. But the First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly. This prosecution is itself evidence of the danger in putting faith in government representations of prosecutorial restraint. When this legislation was enacted, the Executive Branch announced that it would interpret §48 as covering only depictions “of wanton cruelty to animals designed to appeal to a prurient interest in sex.”  No one suggests that the videos in this case fit that description.

(Opinion at 18, citations omitted). 

The Court's 8-1 affirmance of the Third Circuit opinion does give one pause after yesterday's oral argument in CLS v. Martinez, discussed here.  Given the Court's decreased caseload, it seems the Court should be expending its energies a bit differently.


April 20, 2010 in Cases and Case Materials, Congressional Authority, Current Affairs, Sexuality, Television | Permalink | Comments (5) | TrackBack (0)

Monday, April 19, 2010

Christian Legal Society (CLS) v. Martinez: Oral Argument Analysis

The transcript (here) of today's oral argument in Christian Legal Society (CLS) v. Martinez revealed a case in procedural disarray.

Michael McConnell, arguing for CLS, had barely pronounced his well-crafted first sentence (“If Hastings is correct, a student who does not even believe in the Bible is entitled to demand to lead a Christian Bible study, and if CLS does not promise to allow this the college will bar them from its forum for speech.”), when Justice Kennedy interrupted with the problem that would dominate the oral argument: What exactly is the Hastings Law School policy that CLS challenges?

The answer to this query (as to many others posed by the Justices) seemed to reside in the many stipulations entered into by the parties.

One contender as the pertinent policy was the law school's nondiscrimination policy that includes sexual orientation.  However, this seemed a distant second to the so-called “all-comers” policy.  This policy provides that student organizations must (to obtain law school funds) allow any student to participate, become a member, or hold a leadership position in the organization.  Thus, Democrats and Republicans can get into each other’s clubs.

McConnell clarified: "The stipulation is that they may not exclude based on status or beliefs. We have only challenged the beliefs, not status. Race, any other status basis Hastings is able to enforce."

JUSTICE STEVENS: What if the belief is that African Americans are inferior?

MR. McCONNELL: Again, I think they can discriminate on the basis of belief, but not on the basis of status.

Later, Gregory Garre, arguing for Hastings, tried to make the argument that sexual orientation is likewise a status, although CLS excludes “homosexuals"

GARRE:    "they appear to take off the table race, and what they say, other status considerations. I'm not sure why that excludes sexual orientation. But if you are going to allow religious groups, or any group, to draw exceptions for some people, then you have to determine where to draw the line. And I think a school can reasonably say: We don't want to get into this business at all; we want to allow all comers for all school-subsidized.

The identification of Michael McConnell, a CLS member, with the CLS position was evident by his use of the first person plural:

We are barred from access to the -- to Hastings' e-mail system; we can't post notices on the usual bulletin board; we are left out of the weekly -

JUSTICE SOTOMAYOR: There are bulletin boards. There are other ones.

MR. McCONNELL: There -- there is -- there are ones for the -- for campus and student groups, and then there is another one for community groups. We are allowed to post on the community group, but we are not allowed to post on the boards that -- that students look to for where student activities occur. We are left out of the -- a very important point -- the student organization fair at the beginning of the year where groups introduce themselves to the 1L's as they -- as they come in.

There was also a very confused colloquy on the relevance of same-sex marriage:

JUSTICE BREYER: If -- if a homosexual person said, I want to belong to this club, and I believe in its principles, I don't believe in sexual relationships before marriage, and that's why I want to work for homosexual marriage, which I do, so my consistency there, is that person -- I am consistent in what I work for, what I believe, and on -- as far as premarital sex is concerned, it's totally 100 percent with your organization that you are representing; would they admit that person or not?

MR. McCONNELL: Yes. There is a joint stipulation to that effect, No. 34.

JUSTICE SCALIA: CLS doesn't have any -- any belief that marriage is between a man and a woman?

MR. McCONNELL: It -- it does. I thought that Justice Breyer posited the case of a person of homosexual orientation who shares that belief.

JUSTICE SCALIA: No, no, no, no. JUSTICE BREYER: He shares the belief that there should be no premarital sex -

JUSTICE SCALIA: But he wants to marry -

JUSTICE BREYER: -- and he says that's why I am working for Proposition 8 or whatever the proposition, or against it -

MR. McCONNELL: Oh, oh, I'm sorry, Justice Breyer -

JUSTICE BREYER: I'm working to legalize homosexual marriage.

MR. McCONNELL: I'm sorry. I misunderstood your question. This is a religious group. Their understanding of marriage is based upon -

JUSTICE BREYER: But the answer is no, that person -

MR. McCONNELL: Not if that person was engaging in sexual conduct that is contrary to the -

JUSTICE BREYER: No, he's not, because his sexual conduct -

MR. McCONNELL: -- or, I'm sorry -

JUSTICE BREYER: -- until marriage is made lawful, at which point he intends to engage in sexual conduct.

MR. McCONNELL: That's right. If the person -

JUSTICE BREYER: That person.

MR. McCONNELL: Regardless of what he intends to do, if he does not agree with the -- the organization on the point of -- of marriage, then he can be -- he can be excluded from leadership in the group. Again, he's able to attend all the activities. CLS has all of its activities entirely open to everyone. And what it objects to is having -- is being run by non-Christians, because after all, this is a group whose very purpose is -

Justice Alito did not participate in this colloquy, but in his questioning of Garre – who was heavily questioned by both Alito and Roberts, Alito asked: Do you think this case deserved a two-sentence decision in the Ninth Circuit?, and then dissatisfied with Garre’s answer about another recently decided Ninth Circuit opinion as being controlling, stated:

The answer is yes, this case which is before us has produced hundreds and hundreds of pages of amicus briefs, deserved two sentences in the court of appeals?

Yet despite those hundreds of pages, it may be that the Court issues a similarly brief opinion:

JUSTICE BREYER:  So with that great unclarity, asked to decide a constitutional issue where I feel I need more facts and I don't have them, the more justification to know what it really is, which I don't have, what should I do?

MR. GARRE: If the Court believes that, respectfully, we think it should dismiss the writ as improvidently granted. This case was litigated based on stipulations to avoid precisely these factual issues that we are now talking about for this first time before this Court.


April 19, 2010 in Current Affairs, Fourteenth Amendment, News, Recent Cases, Sexual Orientation, Theory | Permalink | Comments (0) | TrackBack (0)

Senate Judiciary Oversight of DOJ Civil Rights Division

The Senate Judiciary Committee will hold an oversight hearing of the Department of Justice Civil Rights Division tomorrow, featuring AAG Tom Perez


Perez was confirmed on October 6, 2009.  He testified in December on the U.S. implementation of human rights treaties before the Subcommittee on Human Rights and the Law, but tomorrow's hearing marks his first time back before the full Committee since his confirmation hearing.  His other speeches and statements are here


April 19, 2010 in Congressional Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Sunday, April 18, 2010

Obama v. Roberts (or the President v. the CJ of SCOTUS)

The persistent problem of the constitutional balance between the Executive and Judicial branches is personalized as a struggle between "two intellectual gladiators"  with their  "Coliseum" as the Supreme Court of the United States in an article in today's "Week in Review" section of the NYT.   Peter Baker describes the two "gladiators" this way:

They are two of the smartest men of their generation, both magna cum laude products of Harvard Law School, both cerebral and charming and ambitious. They vaulted to the highest offices in the land after just short stints at the next level down, and each was seen initially as a conciliator only to lead on the strength of his own majority.

FacultyPhoto The article discusses some substantive differences of opinion, but returns to Roberts "fumbling" the administration of the presidential oath to Obama and Obama's criticism of Citizens United during the State of the Union address. 

Dean Christopher Edley of UC-Berkeley Law School (pictured left) has the last word, saying (according to the article's author) that  "it was a shame the two could not have at it one on one": 

"Televise this chief justice and this president on stage at the Kennedy Center for three hours talking about the role of government and the future of our polity,” Mr. Edley said. “This historic clash of intellectual titans would be the most powerful civics lesson since the Federalist Papers, and we could sure use it.”


April 18, 2010 in Current Affairs, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)