Friday, February 15, 2013

Daily Read: Sean Wilson's The Flexible Constitution

Sean Wilson (pictured) Wilsonprovides a compelling view of constitutional interpretation in his new book, The Flexible Constitution.  His work is often Dworkian in tone, although Wilson distinguishes himself from Dworkin's interest in moral reasoning.  Instead, Wilson writes that constitutional law problems are what "Wittgenstein described as aesthetical judgments - i.e. judgments that a connosseur would make" and Wilson stresses culture much more than morality.  (p. 83).

 

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Worth a special read is the book's Appendix, "The Philosophical Investigation," which provides a Wittigensteinian interrogation of the meaning of "the original meaning of the Constitution."  This would be a terrific exercise for a Constitutional Interpretation or Jurisprudence seminar.

RR

February 15, 2013 in Books, Interpretation, Teaching Tips, Theory | Permalink | Comments (0) | TrackBack (0)

Thursday, January 24, 2013

Libel and the First Amendment in the Iowa Supreme Court

It's easy to see how writing and publishing a memoir centering on one's former spouse, especially if the theme is how "Satan (through my ex) set out to destroy my life," might lead to a defamation action in state court by the former spouse.  But as the Iowa Supreme Court demonstrated in its recent opinion in Bierman v. Weier, the entwinement of the First Amendment, the state constitution, and the tort issues are far from simple to resolve.

504px-Jan_van_Eyck_059The opinion has an excellent discussion of First Amendment Supreme Court precedent on defamation and an interesting application of last term's decision in United States v. Alvarez, the "Stolen Valor case." The defendants argued that Alvarez should be construed to invalidate libel per se presumptions because it recognized a First Amendment right to make "factually false statements."  As the court stated, however, the problem with this argument "is that both opinions making up the Alvarez majority specifically highlighted defamation as a traditional area where the law was constitutional because it did not punish statements merely because of their falsity."  The Iowa Supreme Court also disregarded the applicability of Citizens United to arguments invalidating libel per se as a matter of state law.

This was not merely a matter of state common law, however, for the Iowa state constitution specifically addresses the issue of libel in Article I, section 7:

Every person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech, or of the press. In all prosecutions or indictments for libel, the truth may be given in evidence to the jury, and if it appears to the jury that the matter charged as libelous was true, and was published with good motives and for justifiable ends, the party shall be acquitted.

The Iowa Supreme Court emphasized that the language supported the continuance of libel per se, especially given the text that made persons "responsible for the abuse of that right."

The continued constitutionality of libel per se left open the legal status of Author Solutions, Inc. (ASI), the self-publishing venture named as a defendant for its role in producing Scott Weier's book.  The status of ASI as a media or nonmedia defendant was important under the state libel law that uses a "Gertz [v. Robert Welch] -inspired framework, which distinguishes media and nonmedia defendants and reserves libel per se for private plaintiffs and nonmedia defendants."   In assessing whether ASI was a media defendant, the Iowa Supreme Court found that it was, interestingly citing New York Times v. Sullivan in support of this rationale:

"It is true that Scott [Weier] paid ASI to publish his book, rather than the other way around. But this fact alone does not change the analysis. Both our precedents and the United States Supreme Court’s have accorded the same protection to media defendants when they publish advertisements as when they publish content they have paid for."

Given the heightened standard of libel per se, the majority found that there was no malice on the part of ASI and reversed the lower court's denial of ASI's motion for summary judgment.  Scott Weier was less successful: the Iowa Supreme Court affirmed the district court and the plaintiffs' claims of libel, false light, and intentional emotional distress will be proceeding to trial, barring a settlement.

RR
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January 24, 2013 in Books, First Amendment, Opinion Analysis, Recent Cases, Speech, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Monday, January 14, 2013

Daily Read: Sotomayor on Sotomayor

Sonia Sotomayor's memoir, My Beloved World, is now out in the world.

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Writing about the book in WaPo, Dahlia Lithwick states "It is nearly impossible to read “My Beloved World” without comparing it with the only other deeply personal autobiography by a sitting Supreme Court justice, Clarence Thomas’s 2007 memoir, “My Grandfather’s Son.”  Lithwick's comparison demonstrates a wide gap between the two Justices' self-presentations.

Discussing the book for NPR, Court correspondent Nina Totenberg echoed the Thomas' comparison, saying:

Justice Clarence Thomas was the last member of the court to write a book that topped the list of national book sales, but while his vividly written autobiography sizzles with rage and resentment, Sotomayor's hums with hope and exhilaration.

And in the Boston Globe review, Jax Wexler also makes reference to Clarence Thomas:

Readers seeking insight into Sotomayor’s judicial philosophy or her positions on hot-button issues will be largely, though not entirely, disappointed. With the constitutionality of racial preferences on the court’s docket again this term, it is refreshing to hear the views of a justice who benefitted from affirmative action and who is not Clarence Thomas. In her memoir, Sotomayor eloquently defends preferences for creating “the conditions whereby students from disadvantaged backgrounds could be brought to the starting line of a race many were unaware was even being run.”

Yet these first reviews - - - and surely more will follow - - - also stress the literary quality of Sotomayor's prose as much as its empathetic message and remarkable content.

This looks like it will be an excellent read.

January 14, 2013 in Affirmative Action, Books, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, January 11, 2013

Daily Read: Ron Collins on Floyd Abrams on the First Amendment

Ron Collins' new book, Nuanced Absolutism: Floyd Abrams and the First Amendment centers lawyering in the development of doctrine and theoretical perspectives of constitutional law. 

800px-Floyd_Abrams_by_David_Shankbone
Abrams (pictured above) is certainly renowned, but is also certainly not a Justice on the Supreme Court, or even a judge.  But Collins reminds us that lawyers do shape our jurisprudence. 

Collins argues that "nuanced absolutism" has become a tenet of First Amendment doctrine that has taken on new life in the decisional law of the Roberts Court, and has been notably argued by Floyd Abrams in a series of cases.

For anyone interested in the First Amendment, this is a must read.

RR
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January 11, 2013 in Association, Books, First Amendment, Speech, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 2, 2013

Daily Read: Seidman on the Constitution as Bondage

We are used to speaking about the Constitution as a "binding document" and a less used to thinking about it as bondage.  Thus, ConLawProf Louis Michael Seidman's op-ed in the NYT entitled "Let's Give Up on the Constitution" has been causing a bit of a stir, especially among ConLaw students and some profs. 

Seidman-michael_1Seidman (pictured) takes his hook from the so-called "fiscal cliff" negotiations in Congress, but he does not limit his argument to the latest controversies.  Instead, he writes:

Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago.

Yet this seems to be more of a critique of originalism than constitutionalism.  And interestingly, Seidman appeals to originalism to support his ultimate argument:

Constitutional disobedience may seem radical, but it is as old as the Republic. In fact, the Constitution itself was born of constitutional disobedience.

Seidman's new book, Constitutional Disobedience, will presumably expand these ideas further.  But for today, the op-ed is an interesting read.

RR

 

January 2, 2013 in Books, Profiles in Con Law Teaching, Theory | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 18, 2012

Daily Read: William S. Burroughs and the Second Amendment

Literaryoutlaw"Beat Generation" afficionados and American Literature majors know William S. Burroughs' Naked Lunch; ConLawProfs may recall the First Amendment implications including the eventual decree by Massachusetts' highest court that the book was not obscene, Attorney General v. A Book Named “Naked Lunch,” 218 N.E.2d 571 (Mass. 1965).

Many also know the broad outlines of William Burrough's life, including his drug addiction and his fatal shooting of his wife.  For those less well-acquainted, Ted Morgan's biography, Literary Outlaw: The Life and Times of William S. Burroughs is an interesting read.  Morgan discusses the various versions of Burroughs' killing of his wife in Mexico by shooting her in the head.  The usual version (and Burroughs' own) features a small social gathering, drinking alcohol, and Burroughs' suggestion that his wife put a glass on her head and he shoot it off "William Tell" style.  He missed and she was dead.  He eventually fled back to the United States and was convicted in Mexico in absentia.  Morgan quotes Burroughs as haunted by the killing and "often" saying his life was an "evil river" and that he was possessed by an "evil spirit."

Given his biography, Burroughs makes a rather odd spokesperson for Second Amendment rights.  Yet, as both Dan Filler over at Faculty Lounge and Brian Leiter quoting Jason Walta note, a December 14 op-ed in USA Today in favor of expansive Second Amendment rights begins with a quote from William S. Burroughs: " "After a shooting spree," author William Burroughs once said, "they always want to take the guns away from the people who didn't do it." "

RR

December 18, 2012 in Books, Current Affairs, Second Amendment | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 27, 2012

Daily Read: Political Parties and Judging

It's something that is, perhaps increasingly, difficult to ignore: the political affiliations of federal judges. 

Adam Liptak's article in the NYT yesterday takes on the subject with a focus on the recent Michigan affirmative action decision from the en banc Sixth Circuit.  Liptak provides the breakdown: "Every one of the eight judges in the majority was nominated by a Democratic president. Every one of the seven judges in dissent was nominated by a Republican president."   This, he argues, is consistent with a forthcoming book, The Behavoir of Federal Judges, an empirical study authored by Lee Epstein, William Landes, and Richard Posner. 

388px-William_Wood,_Vanity_Fair,_1869-03-20Liptak thus rejects - - - at least implicitly - - - the practice of SCOTUSBlog's preeminent reporter and commentator Lyle Dennison whose "note to readers" in his discussion of the Michigan affirmative action case explained; that he would not include "references to the political party affiliation of the Presidents who named the judges to the bench" because "the use of such references invites the reader to draw such a conclusion about partisan influence, without proof."  Denniston, however, did include a caveat: he would provide that information" when "it is clearly demonstrated that the political source of a judge’s selection had a direct bearing upon how that judge voted — admittedly, a very difficult thing to prove."

Whether it is a question of causation, correlation, or coincidence is an issue often raised by law students in ConLaw classes, and one that ConLawProfs struggle to answer from various perspectives.

For Liptak, however, there is predictive certainty.  Referencing the affirmative action case of Fisher v. University of Texas argued in October, he writes:

The justices’ votes in the Texas case are as yet unknown. But here is a good bet: every vote to strike down the program will come from a justice appointed by a Republican president, and every vote to uphold it will come from a justice appointed by a Democratic one.

RR
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November 27, 2012 in Affirmative Action, Books, Courts and Judging, Current Affairs, Race, Recent Cases, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Saturday, November 24, 2012

Wilkinson's Cosmic Constitutional Theory

Judge J. Harvie Wilkinson III (4th Cir.) argues in Cosmic Constitutional Theory: Why Americans Are Losing Their Inaliable Right to Self-Governance that the proliferation of constitutional theories in recent decades is undermining judicial restraint, handing judges the keys to our democracy, and ultimately leading to the loss of self-governance.  Judge Wilkinson's point is this: comprehensive constitutional theories (of constitutional interpretation, of judging) empower judges, even when they're designed not to, and thus undermine a necessary feature of our government, judicial restraint.  Judicial empowerment comes at a cost to the democratic branches, and thus to self-governance itself.

Cosmic Con Theory

Cosmic Constitutional Theory, part of Oxford's Inaliable Rights Series, surveys the "grand and unifying" constitutional theories--living constitutionalism, originalism, political process theory, textualism, minimalism, cost-benefit pragmatism, active liberty, and moralism--and argues that they have empowered judges at the expense of the democratic branches.  Judge Wilkinson explains:

No one has stepped back and asked exactly where these theoretical proliferations of all persuasions are taking us.  The answer to that question will become clear: the theories are taking us down the road to judicial hegemony where the self-governance at the heart of our political order cannot thrive.

Indeed, the theories have given rise to nothing less than competing schools of liberal and conservative judicial activism, schools that have little in common other than a desire to seek theoretical cover for prescribed and often partisan results.  In short, cosmic constitutional theory has done real damage to the rule of law, the role of courts in our society, and the ideals of restraint that the greatest judges in our country once embraced.  But the worse damage of all has been to democracy itself, which theory has emboldened judges to displace.

And at another point:

Indeed, I fear that democratic liberty will more and more become the victim of cosmic theory's triumphal rise.  The grand quest of the theorists has left restraint by the wayside and placed the inalienable right of Americans to self-governance at unprecedented risk.  The increasing willingness of leading thinkers in the law to claim that their theory of the Constitution provides the answers has made citizens all the more willing to look to the courts to resolve the great social controversies of our time.  In turn, the courts' eagerness to resolve such debates has cast them in a decidedly political light, making judicial selections and confirmation battles all the more disputatious.

But Judge Wilkinson only weakly argues for judicial restraint, almost taking the point for granted.  And it's hard to see where he draws the line between a properly restrained court and an inappropriately activist one.  Consider this passage, distinguishing between "major activist decisions" and certain contemporary cases:

Major activist decisions of the Warren Court . . . have rightly stood the test of time, and that success doubtless strengthens the belief of today's interventionists that tomorrow may smile on their bolder efforts too.

They are wrong.  Decisions like Brown, Gideon, and Miranda represent success stories because they vindicated foundational principles essential to the functioning of our nation.  But I doubt there are now Browns and Gideons waiting to be born.  One can debate the precise reach of eminent domain or regulatory takings or the value of same-sex marriage or the utility of firearms regulation without believing that our Constitution is bereft of meaning if one's own beliefs are not embodied there.

Judge Wilkinson's solution is not a new theory.  He declines to advance one.  Instead, he argues for a kind of judicial restraint and deference to the political branches that he says is best represented by the work of Justices Holmes, Brandeis, Frankfurter, Harlan, and Powell.  According to Judge Wilkinson, "Their examples show that one can be a great justice without expounding a grand theory."

SDS

November 24, 2012 in Books, News, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 20, 2012

Freedman's Naked Constitution

It's refreshing to pick up a book that explores a topic like constitutional originalism with vim and vigor and a plain-spoken, jargon-less approach that appeals to--indeed invites--readers who are outside the technical academic debates.  We ought to have more like this.  If we did, we might have more meaningful public discussions about the virtues and vices of originalism, living constitutionalism, constitutional fidelity, or any other method of constitutional interpretation or construction--and why they matter.

The downside, of course, is that plain-spoken-ness can sometimes come at a cost to nuance, balance, completeness, and even honesty.  This may be especially true when discussing constitutional interpretation and construction, an area so rife with nuance and indeterminacies.  The danger (and perhaps an opportunity, for advocates of any particular approach) is in over-simplifying.

Naked constitutionAdam Freedman's The Naked Constitution sets a standard for plain-spokenness and accessibility in the area of constitutional originalism.  It's an extraordinarily well written--indeed, fun-to-read--page-turner that romps through the Constitution and the courts' treatment of it and delivers a plain-spoken argument for Freedman's brand of original-meaning originalism.  (Just to be clear: Freedman argues that original meaning supports a narrow, strict reading of the text.)

But while Freedman's gift for clear, entertaining writing has all the potential to bring a serious constitutional debate to a broader public, it also trades on nuance, balance, and completeness in the text, history, and precedent.  And because of the book's (unnecessary) partisanship, it's likely only to reinforce the ideas of Freedman's supporters, to alienate his detractors, and to divide readers.  I don't think it'll do much persuading or advancing-of-the-originalism-debate on either side.

And that's OK.  This book seems designed first as a political argument, only next as a constitutional one.  It's red meat for conservatives, and it'll surely rile progressives.  If you're looking for a lively, readable volume that will fuel your constitutional politics (whatever they are) this is for you.  And the book's sheer breadth ensures that you're likely to learn something about constitutional originalism (or anti-living-constitutionalism), even if the book doesn't always tell the whole story.

Freedman takes aim at the usual suspects--a Congress bent on legislating ultra vires, a unitary executive constrained by independent agencies, unenumerated fundamental rights, a wall of separation between church and state, lack of priority to the rights of gun owners and property owners, an Eighth Amendment run amok, and a vacant Tenth Amendment.  According to Freedman, these all share this common denominator: an activist judiciary that is unfaithful to the original meaning of the text.  

But these usual suspects all share another common denominator: they're the bread-and-butter bogeymen of the new-style political conservatives.  Freedman would say as much.  Indeed, a good part of his book is devoted to showing that "liberals"--everyone from the ACLU, to the Ninth Circuit, to President Obama--support these constitutional over-reaches.  That's too bad.  It's distracting and divisive.  And it's unnecessary.

The book's partisanship is unnecessary because there's an apolitical case to be made for original-meaning originalism (and against an unfettered living constitutionalism)--one that can use the same lively and accessible approach that Freedman uses here.  But that case also has to be fair and balanced; it has to look at the complete original meaning, to acknowledge originalism's shortcomings, and to lodge originalist critiques of living constitutionalists honestly.  

Freedman's book sometimes moves in this direction.  It's especially strong when it identifies apparent absurdities in the doctrine, for example when it takes on the Court's gloss on the religion clauses: "In the contradictory world of the First Amendment, it is ridiculously easy to 'establish' a religion, but it's almost impossible to burden 'free exercise.'"  That's overstated, but it raises a point.

But the book also too often sets up straws, picks at low-hanging fruit, and neglects the full original-meaning picture.  As an example of the last, consider the book's treatment of federalism and the Tenth Amendment: the book neglects the bulk of the textual and original-meaning evidence supporting a robust federal government (over the states); and it turns the scant evidence of original meaning that it considers on its head.  (See, for example, the discussion of the omission of the word "expressly" from the Tenth Amendment, on pages 290 to 291, arguing that the omission reinforces a limited federal government, and that CJ Marshall recognized this in McCulloch.)  It also devalues the original meaning of the federalism amendments--thirteen through seventeen, and others.

In short, The Naked Constitution is more a political argument than a constitutional one--and consciously so.  It's a terrifically fun read, but one that is likely only to solidfy positions, not to propel the public debate about originalism.  

Freedman also created a companion podcast that's worth checking out.

SDS

November 20, 2012 in Books, History, Interpretation, News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, November 16, 2012

Daily Read: Stanley Aronowitz on C. Wrights Mills on Political Intellectuals

What is the work of political intellectuals, public intellectuals, or even, constitutional law professors?

AppStanley Aronowitz, who participated in a public conversation about such topics this morning, is the author most recently of Taking It Big: C. Wright Mills and the Making of Political Intellectuals.  Mills, who died in 1962 and was once widely known, is undergoing a bit of a resurgence; Aronowitz' "intellectual biography" of Mills contributes to this trend.

Aronowitz describes Mills' critiques of academics as knowledge workers; observations that are especially relevant in our post-election assessments and the role of constitutional commentators:

[Their] Knowledge is dedicated to assisting the state to regulate, in the first place, the poor.  Having forsaken theoretical explorations aimed at explaining social events, the disciplines of economics and political science have, with the exception of a small minority of practitioners, become policy sciences.  Economists advise and assist governments and corporations to anticipate and regulate the “market,” raise and spend tax revenues, and help direct investments abroad as well as at home.  Political science has virtually become an adjunct to the political parties and to the foreign policy establishment; its polling apparatuses are guides to candidates on how to shape their message and to whom to target their appeals.

But Aronowitz suggests that the work of C. Wright Mills is important because Mills’s questions of "what a new society based on principles of economic and social equality would look like" continues to endure "as an unfinished and neglected series of tasks."

RR

November 16, 2012 in Books, History, Scholarship, Theory | Permalink | Comments (1) | TrackBack (0)

Friday, November 9, 2012

Daily Read: Iron Curtain and Constitutional Rights

9780385515696_custom-07bec2eeb38f9203f224afe4e12dd9d64e1a0026-s15Anne Applebaum's new book, Iron Curtain: The Crushing of Eastern Europe 1945-1956, is a sequel of sorts to her book Gulag, which won the Pulitzer prize.  In a recent interview with Terry Gross on Fresh Air, Applebaum talked about the centrality of controlled media and art to Soviet Communist domination. 

For example, there was a government suppression of "abstract art":

The fear of abstract art is that it could be interpreted in many ways, and who knows what you could read into a painting that didn't have a clear message? One of the obsessions that the Soviet Union and the Eastern European communist parties had was always controlling the message — all information that everybody gets has to be carefully controlled and monitored. Art was no exception. Art was supposed to tell a story, it was supposed to have a happy ending, it was supposed to teach, it was supposed to support the ideals of the party. There was no such thing as art for art's sake, and there was no such thing as art reaching into some kind of spiritual, wordless realm. No, art was done in service of the state, and it was something that was going to help mold people and create citizens who do what the state tells them, and who follow the rules.

While her project is not a comparative one, her book demonstrates the centrality of the constellation of rights protected under the United States' Constitution's First Amendment, including expression, media, and religion.  Also important would be any rights of habeas corpus, due process, and those pertaining to criminal procedure as a means of resistance to government oppression. 

RR

November 9, 2012 in Books, Comparative Constitutionalism, First Amendment, Speech | Permalink | Comments (0) | TrackBack (0)

Monday, October 29, 2012

Daily Read: New Rehnquist Biography

RehnquistBioThe Partisan: The Life of William Rehnquist by John A Jenkins, published by Public Affairs Books this month is the first - - - and seemingly largely unflattering - - - biography of the former Chief Justice.  Jenkins writes:

To be William Rehnquist was to consider one's self misunderstood—and with good reason. Rehnquist often appeared to be living in a private world of his own invention, and probing strangers were not welcome. . . .

Even as a young man in the 1950s, Rehnquist boldly preached an uncompromising brand of conservatism, and he espoused views—and acted on them—that were racist even by the standards of that era. Confronted later in the Senate, he took a disingenuous approach with his critics, lying his way out of trouble. Having taken his knocks in two brutal confirmation hearings, he deeply mistrusted the press, and he did his best to frustrate coverage or, failing that, to keep the stories about him one dimensional.

Reviewing the book in the LA Times, Jim Newton argues that the book does ignore some of the ways in which Rehnquist did "reconsider some views, most notably in the area of the Miranda case, which Rehnquist deplored for years but then upheld in 2000, concluding that it had become so enmeshed in American law and society that it would be improper to overrule it."  

And Newton situates the biography of Rehnquist within the contemporary Court, observing that

If Rehnquist were alive and serving today, he'd be a moderate on the court, outflanked to his right by Justices Antonin Scalia, Clarence Thomas and, arguably, Samuel Alito and Chief Justice John Roberts. Even Rehnquist would have found that hard to imagine.

RR

 

October 29, 2012 in Books, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 23, 2012

Daily Read: Collins on Toobin on the Court

Over at SCOTUSBlog, ConLawProf Ron Collins has a terrific Q & A with Jeffrey Toobin about Toobin's latest book, The Oath.

Here's an especially intriguing sample:

Question:

In The Oath you refer to Justice Clarence Thomas [pictured] as a “conservative intellectual path-breaker.”  You mention this in the context of some of his First Amendment opinions.  Of the 29 First Amendment free expression opinions rendered by the Roberts Court, however, 419px-Clarence_Thomas_officialJustice Thomas has authored only two majority opinions, neither of which was path-breaking. (See Reichle v. Howards, 2012 (8-0) and Washington State Grange v. Washington State Rep. Party, 2008 (7-2)). 

In what sense, then, do you seem him as a First Amendment “path-breaker”? Which of his separate opinions do you see as point the path to future First Amendment precedents?

Answer:

 One of the many paradoxes of Justice Thomas’s tenure is that he has been influential without writing many important majority opinions. Indeed, it is difficult to think of a Justice who has been in the majority as often as Thomas for as long as Thomas and written so few important majority opinions. (Indeed, here’s an interesting exercise: What’s the most important majority opinion Thomas has written?  Beats me.)

Still, I think Thomas’s concurrence in McIntyre v. Ohio Elections Commission and his dissent in Nixon v. Shrink Missouri Government PAC include themes that are clearly reflected in Justice Kennedy’s decision in Citizens United.

 

Collins and Toobin also discuss Roberts on affirmative action and the Court's work load.  An interesting read!

RR

 

October 23, 2012 in Books, Courts and Judging, First Amendment, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, October 22, 2012

Daily Read: George McGovern on the Founders

George McGovern, former United States Senator and 1972 Presidential nominee, died yesterday at the age of 90. 

353127McGovern was a paradigmatic voice for liberalism and his 2004 book, The Essential America: Our Founders and the Liberal Tradition makes the argument that the founding generation was steeped in liberal tradition.  In a C-SPAN interview in 2004, McGovern stated that both the liberal and conservative traditions are important:

I think that liberalism has been so battered by its critics that people have almost become self-conscious about using the word. I don`t feel self-conscious about it because I think Thomas Jefferson was a liberal. Thomas Paine was a liberal. James Madison was a liberal. These early Founders, the ones who were really the deep thinkers, I think had a liberal streak through them. Now, they also had some conservative streaks. And I`m not against the conservative traditions. In fact, in my book, I say that the genius of American politics is the creative tension that exists between conservatism, on the one hand, and liberal on the other. My dad and mother lived and died as conservative Republicans. I had some pretty good arguments with them in later life, but I respect both of those traditions. And I don`t think people ought to be ashamed to say, I am a conservative, I am a liberal. I respect both traditions.

Asked to define liberal, McGovern stated:

A liberal in today`s world, and the definition has changed with the passage of time, but I would say a 20th century liberal or 21st century, now, liberal, is one who believes in a positive federal government that takes concrete measures that are in the interest of the ordinary citizen. A liberal doesn`t -- doesn`t sell out to the special interests. He or she seeks to serve the great American public.

Watching the video interview of McGovern, or reading one of his books, is a worthy way to remember him.

RR

October 22, 2012 in Books, Current Affairs, History, News | Permalink | Comments (0) | TrackBack (0)

Monday, October 15, 2012

Ninth Circuit: Yellow Pages Entitled to Strict Scrutiny as Protected Speech

The Ninth Circuit's opinion today in Dex Media West v. City of Seattle concerns a challenge to a Seattle ordinance regulating "yellow pages" phone directories for the purposes of waste reduction, resident privacy, and cost recovery of the directories. 

The bulk of the panel's opinion is devoted to the issue of whether the commercial speech standard or the higher strict scrutiny standard should apply.  The panel ruled that the commercial speech portions of yellow pages directories were inextricably intertwined with the noncommercial aspects AND that the yellow page directories "as a threshold matter" "do not constitute commercial speech under the tests of Virginia Pharmacy and Bolger." [Virginia Pharmacy Bd. v. Va. Consumer Council, Inc., 425 U.S. 748 (1976); Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (1983)].

Phone_book
In protecting the yellow pages directories by subjecting regulations to strict scrutiny review, the panel essentially found that the divide between the yellow pages and newspapers was simply too thin:

To be sure, the Yellow Pages Companies are in the business of selling advertisements and contracted to distribute the noncommercial speech to make their advertising space more desirable due to greater directory use. But it is important to keep in mind that the First Amendment protections available to newspapers and similar media do not apply only to those institutions of the type who “have played an historic role in our democracy.” To assume that every protected newspaper, magazine, television show, or tabloid’s “noncommercial” content precedes and takes priority over the publishing parent company’s desire to sell advertising is at odds with reality and the evidence in the record.

Ultimately, we do not see a principled reason to treat telephone directories differently from newspapers, magazines, television programs, radio shows, and similar media that does not turn on an evaluation of their contents.

The panel concluded, therefore, that "the yellow pages directories are entitled to full First Amendment protection."

The panel did not consider whether any of the proferred governmental purposes were compelling because it decided the ordinance was not "the least restrictive means available to further them."  It stated that Seattle could support the  companies' own opt-out programs or even simply fine the companies rather than compel them to finance the city's programs.  Thus, the ordinance was declared unconstitutional.

RR
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October 15, 2012 in Books, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 9, 2012

Daily Read: Bowden on Obama on binLaden's Possible Article III Trial

9780802120342In the just-published book The Finish: The Killing of Osama bin Laden by Mark Bowden apparently argues that

in the unlikely event that bin Laden surrendered, Obama saw an opportunity to resurrect the idea of a criminal trial, which Attorney General Eric Holder had planned for Khalid Sheikh Mohammed. This time, the president tells Bowden, he was prepared to bring bin Laden back and put him on trial in a federal court. “We worked through the legal and political issues that would have been involved, and Congress and the desire to send him to Guantánamo, and to not try him, and Article III.” Obama continues: “I mean, we had worked through a whole bunch of those scenarios. But, frankly, my belief was if we had captured him, that I would be in a pretty strong position, politically, here, to argue that displaying due process and rule of law would be our best weapon against al-Qaeda, in preventing him from appearing as a martyr.”

Obama's representations, given in an interview with Bowden, present an interesting - - - and perhaps unlikely - - - counterfactual.  Over at Lawfare, Wells Bennett observes that "it seems a safe bet that congressional resistance to a civilian prosecution would have been extreme, at least as heated as the resistance to the civilian prosecution of the 9/11 co-conspirators."

RR

October 9, 2012 in Books, Courts and Judging, Current Affairs, Executive Authority, Foreign Affairs, International, Jurisdiction of Federal Courts, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 2, 2012

Daily Read: Lee Epstein on Linda Greenhouse on the Supreme Court

Lee-EpsteinLee Epstein, writing in Jotwell about Linda Greenhouse's new book, The U.S. Supreme Court: A Very Short Introduction (Oxford University Press 2012), calls it "sophisticated, yet accessible."  Epstein writes:

If your students—undergraduate, graduate, or law—are looking for a brief introduction to the Supreme Court, as mine often are, this is the book to recommend. . . .  As for you Supreme Court junkies: don’t make the mistake of discounting it. I’ve been studying the Court for nearly thirty years and still learned new things, whether small factoids or different ways to think about an institution that, as Greenhouse rightfully notes, continues to “occup[y] a place in the public imagination.”

Lee Epstein (pictured right), co-author of the wonderful The Supreme Court Compendium, as well as a host of other essential books and articles, is not someone whose advice should be taken lightly. 

RR

 

October 2, 2012 in Books, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, October 1, 2012

Daily Read: Garrett Epps on Toobin's The Oath

In his NYT Book Review piece on Jeffrey Toobin's The Oath, ConLawProf Garrett Epps has this intriguing passage:

And although Toobin sees Citizens United as a triumph of Roberts’s partisan agenda, the facts related in “The Oath” can be read differently — to depict a rookie chief justice, nervous about moving doctrine too fast, reluctantly hustled along by an impatient conservative bloc.

 

Robertsoath3

RR
[image: Roberts being sworn in by Stevens, with Jane Roberts, via]

October 1, 2012 in Books, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, September 28, 2012

Daily Read: Segall on O'Connor in Grutter

As the October 10 oral argument in Fisher v. University of Texas approaches, Grutter v. Bollinger (2003) is  center stage.  Consider this critique:

Finally, at the end of Justice O’Connor’s opinion [in Grutter] upholding the law school’s racial preferences, she wrote that, “[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”  How does Justice O’Connor know what the state of racial affairs know what the state of racial affairs will be in this country in 25 years and what authorizes her to put a sunset provision on the holding of this case?  A legislator voting for an unpopular piece of legislation might wish to place her vote in the context of a statement suggesting that a time may come when her vote will change or become necessary. But given the historical and political complexity of the affirmative action debate, for Justice O’Connor to suggest that she has some special awareness as to when race-bases measures ay no longer be necessary, and to identify that time 25 years in advance, is judicial hubris and an inappropriate and arbitrary exercise of judicial power.  In fact, it is not “judicial” at all.

It's from Eric Segall's book, Supreme Myths: Why the Supreme Court is Not a Court and Its Justices Are Not Judges (2012). 

Coverimage

It is a sentiment with which others, including perhaps the now-retired Justice O'Connor, might agree, albeit in more gentle language.

Segall's chapter on "Affirmative Action" is a good review of the cases and controversies that have led to Fisher.  His critical perspective on affirmative action would counsel the Court to defer to the university's use of racial criteria. 

Segall's overall thesis - - - captured by the book's subtitle - - - provides a somewhat daunting view of the relevance of constitutional litigation in the Supreme Court, but Segall's book is ultimately an optimistic and engaging read.

RR

September 28, 2012 in Affirmative Action, Books, Cases and Case Materials, Equal Protection, Federalism, Fourteenth Amendment, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, September 21, 2012

Daily Read: Reconsidering State Action and Reconstruction

PbrandweinPolitical Science Prof Alec Ewald reviews Pamela Brandwein's book, Rethinking the Judicial Settlement of Reconstruction in Law & Politics Book Review here. 

Brandwein (pictured), a political science professor, has written a "bold revisionist book, sure to challenge the assumptions of anyone who has written on or taught Reconstruction-era Constitutional history," according to Ewald.

It's Brandwein's focus on the state action doctrine that will most interest conlawprofs.   Here is Ewald's ultimate assessment:

The total disenfranchisement of southern blacks after 1891 had many causes, but “[a] ‘closed’ doctrine of state action, one that shut the door on federal efforts to protect black rights, was not among them” (p.183). When we talk about the state-action doctrine, we are talking about a messy thing rather than a bright line. But the cases themselves, and particularly those all-too-quotable lines from the Civil Rights Cases, can seduce us into thinking the Court of the early 1880s drew a sharp boundary around all non-governmental action and declared it completely off-limits for the federal government. Brandwein shows it wasn’t so.

A good review can tell us whether or not the book is worth our time.  Ewald demonstrates that Brandwein's book is a necessary one for anyone teaching or writing on state action.

RR

September 21, 2012 in Books, Equal Protection, Fourteenth Amendment, History, Race, Reconstruction Era Amendments, Scholarship, State Action Doctrine | Permalink | Comments (0) | TrackBack (0)