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. 


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.



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:


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?


 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!



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.


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)].

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.

[image via]


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."


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. 



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.



[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). 


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.


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.


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

Monday, September 17, 2012

Toobin's "The Oath"

Jeffrey Toobin's much-anticipated The Oath: The Obama White House and the Supreme Court comes out on Tuesday.  Early reviews are excellent; here are links to a handful.


  • Jeffrey Rosen has a thorough and balanced review in the Washington Post.  Rosen calls Toobin "Woodward's successor as the chronicler of behind-the-scenes details from the Supreme Court," and says The Oath "is a page-turner."  Toobin writes that the big scoop in the book is that Chief Justice Roberts's first draft of Citizens United was limited, saying only that the Bipartisan Campaign Reform Act didn't apply to Citizens United's movie critical of Hillary Rodham Clinton (and not that the BCRA was unconstitutional, as the Court eventually ruled).  (Toobin also writes of that other big event involving Chief Justice Roberts: his switch in the ACA case.)
  • Terry Gross has a wonderful interview with Toobin on Fresh Air.  The NPR link also has a link to excerpts from the book.
  • Kirkus Review calls the book "a skillful probing of the often-discordant relationship between the president and the Supreme Court" and "[s]hrewd and elucidating."
  • The Huffington Post review focuses on Chief Justice Roberts's ACA switch.
  • Politico's Playbook has a couple excerpts.


September 17, 2012 in Books, Courts and Judging, News | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 29, 2012

Constitution Bashing?

As ConLawProf Sandy Levinson rightly observes in an Op-Ed in today's NYT, "the Constitution is enveloped in near religious veneration."  Although perhaps this isn't so right, at least in some circles.

His own op-ed, for example, argues that the Constitution itself is responsible for current political pathologies. He singles out the Electoral College and the composition of the Senate for special note, both of which result in states such as New York, California, and Texas being diminished.

382px-17th_Amendment_Pg1of1_ACThis incorrect equality amongst states is also highlighted by Kevin Bleyer in his new book, Me The People.  To be sure, Bleyer is a comedy writer, but as he argues in the recent excerpt in Salon, "despite what the original Constitution of the United States says about the qualifications for statehood and the guarantee of representation," there are just some states that don't deserve their status.  One rationale for such disrespect: there are "more Americans in prison than in Nebraska."

For his part, Sandy Levinson focuses on Article V as "the worst single part of the Constitution" because it has made the US Constitution "among the most difficult to amend of any in the world."   He argues that the "near impossibility of amending the national Constitution not only prevents needed reforms; it also makes discussion seem futile and generates a complacent denial that there is anything to be concerned about."

Yet amending the Constitution - - - by repealing an Amendment - - - was a topic in a debate among Republican hopefuls for one of Missouri's two seats in the United States Senate.  The Amendment in question is the Seventeenth Amendment; "The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures."  Recall that prior to the Seventeenth Amendment, Article I §3 controlled: "The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof . .  ."   So, basically, the Seventeenth Amendment required direct election of Senators.

As the St. Louis Beacon reports, Senate hopeful (and current US Representative) Todd Akin thought a repeal of the Seventeenth Amendment might shift the balance back towards "states rights."  The other candidates were less interested in the issue.  Their respective statements are available on YouTube, linked at the St Louis Beacon article.  And there are certainly more scholarly discussions, including one between Todd J. Zywicki and Ilya Somin hosted by the Federalist Society last year. 

For those participating in summer institutes for undergraduates or comparative law programs, there is much fodder here.

[image: 17th Amendment as ratified via]

May 29, 2012 in Books, Comparative Constitutionalism, Current Affairs, Federalism, History, Interpretation, Scholarship, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Sunday, May 20, 2012

Sunday Book Review: Mantel's New Novel

If you missed the first installment, Hilary Mantel's bestselling and Man Booker Prize winner, Wolf Hall, the second in the trilogy can nevertheless be started post-haste.  It's the just-released Bringing Up The Bodies. Stellar reviews appear in the NYT, and LA Times.  Novelist and intellectual Margaret Atwood, in The Guardian, noted that although this volume centers on the fall of Anne Boleyn, like its predecessor, it's really about "the deep, dark, labyrinthine, but strangely objective mind of Thomas Cromwell."



As Atwood wrote:

The historical Cromwell is an opaque figure, which is most likely why Mantel is interested in him: the less is truly known, the more room for a novelist. Cromwell rose from obscure and violent origins through a life abroad – sometime soldier, sometime merchant – to become England's top go-to man, the prime maker-and-breaker of fortunes and spines, secretly hated and despised, especially by aristocrats. He played Beria to Henry VIII's tyrannical Stalin: he did the dirty work and attended the beheadings, while Henry went hunting.

But what Atwood doesn't mention is that Thomas Cromwell (pictured above in the famous Hans Hoblein portrait which is discussed in Mantel's novels) is a lawyer.  A consumate lawyer.  In many ways, Cromwell is witness, and perhaps midwife, to the rise of English law, although law will not be sufficient to save him (presumably in volume III of the trilogy).

While some ConLawProfs find novels a guilty pleasure (or even not pleasurable!), the legal machinations and historical resonances of Bringing Up The Bodies make this novel a great summer read that could inform teaching and scholarship.

And for those who prefer to listen to books, the audiobook is available, with a sample (and a great description of Cromwell starting after about a minute, and including the description of the painting) here:


BringUpThe Bodies


[Portrait of Thomas Cromwell by Hans Holbein, circa 1533, via]

May 20, 2012 in Books, Comparative Constitutionalism, History | Permalink | Comments (0) | TrackBack (0)

Sunday, May 13, 2012

Sunday Book Review: Who's Afraid of Free Speech?

We-must-not-be-afraid-free-stories-ronald-collins-hardcover-cover-art-165x250Ronald K.L. Collins and Sam Chaltain take the title of their book - - - WE MUST NOT BE AFRAID TO BE FREE - - - from Justice Black's dissent in In re Anastaplo, 366 U.S. 82 (1961).  Con Law Prof George Anastaplo had argued for admission to the Illinois bar, despite his refusal to answer the questions of the state Committee on Character and Fitness pertaining to his membership in the Communist Party. 

Collins and Chaltain devote their first chapter to Anastaplo, providing the "back story" and the doctrine.  Subsequent chapters also promise similar engagements with well-known and lesser-known free speech cases.  Harvard Law Review, in its "Recent Publications" segment, lauds the book:  it " skillfully blends history and doctrine, furnishing the reader with an introduction to core free speech cases through vivid and real-life accounts of the parties, judges, and attorneys involved,"  providing " a deeply engaging work of scholarship for general readers and students of the law alike."

Published by Oxford University Press, this is a must-have for every ConLaw Prof teaching or writing about the First Amendment.  The book has been out for a year, but ConLawProfs behind in their reading should put the book on this summer's reading list.  As a terrific teaser, or refresher, an hour-plus long video of Collins and Chaltain discussing the book last year at The Thomas Jefferson Center for the Protection of Free Expression is available on C-Span here.


May 13, 2012 in Books, First Amendment, Scholarship, Speech | Permalink | Comments (0) | TrackBack (0)

Sunday, May 6, 2012

Sunday Book Review: Robert Caro on LBJ

758px-Lyndon_B._Johnson_taking_the_oath_of_office,_November_1963The book of the week is definitely Robert Caro's fourth (and next to last) volume of the biography of Lyndon Baines Johnson, the 36th United States president.  In over 700 pages, Caro discusses and documents five tumultuous years in the life of LBJ - - - and in the nation's life - - - roughly from 1960 until 1964. 

It's a period that includes the assination of JFK with LBJ assuming the presidency.  LBJ's oath of office, observed by Jackie Kennedy, is captured in an iconic photograph (right via).  Caro's details of the event are based in part on interviews with the photographer.

The NYT Sunday book review has a front page review by the United State's 42nd president, Bill Clinton. In a passage that might give some pause given Clinton's own problems, Clinton writes:

As Caro shows in this and his preceding volumes, power ultimately reveals character. For L.B.J., becoming president freed him to embrace parts of his past that, for political or other reasons, had remained under wraps. Suddenly there was no longer a reason to dissociate himself from the poverty and failure of his childhood. Power released the source of Johnson’s humanity.

The NYT also has a review by Michiko Kakutani and a worth watching, if quite brief, video discussion between NYT's Sam Tanenhaus and author Robert Caro. 

NPR also has a terrific review as well as an excellent interview by Steve Inskeep with Caro, stressing his writing process.  Inskeep provides more insight and his own observations, including critiques of Caro's work, in an essay in The Washington Post.  C-Span will air a two-part interview with Caro.

Caro vows to finish the final volume of the biography, which will cover the period until LBJ's death in 1973.  It will undoubtedly include LBJ's nomination and the Senate's confirmation of Thurgood Marshall to the United States Supreme Court.


May 6, 2012 in Books, History, Scholarship | Permalink | Comments (0) | TrackBack (0)

Sunday, April 29, 2012

Sunday Book Review: American Politicians Confront the Court

ILgn Law and Politics Book Review, Tom S. Clark reviews a timely book, American Politicians Confront the Court: Opposition Politics and Changing Responses to Judicial Power by Stephen M. Engel.  Clark writes that "Engel’s argument is essentially that the terms of constitutional political debate have evolved over the past 220-plus years and that the nature of political confrontations with the Court bears witness to those patterns." 

Clark compliments Engels' historical and descriptive narrative,noting that his "knowledge of the content and nature of political attacks on the Court throughout American history is impressive."  He finds Engels' explanatory theory of the "displacement of civic republicanism with liberal pluralism" provocative.  But he wonders whether "the story is not that politics changed and as a consequence the Court has become “safe” from attacks on its legitimacy. Instead, the story could be that the Court has strategically taken steps to build a strong reputation among the public (the real source of power in American politics) and thereby cornered the politicians into a position where they can no longer actively threaten the Court, for fear of political reprisal from the public." 

Yet Clark's own suggestion that the Court has solidified its power beyond approach might be vulnerable. The most recent example is public criticism of Scalia's conduct in the oral arguments in Arizona v. United States.  There has also been a resurgence of interest in the question of whether Supreme Court Justices (and all federal judges) are guaranteed life tenure by the Constitution.

And in today's NYT "Sunday Review" prominent literary figure E.L. Doctorow essentially argues that the United States has become unexceptional: "indistinguishable from the impoverished, traditionally undemocratic, brutal or catatonic countries of the world." Notable, Doctorow's essay begins and ends by focusing on the Supreme Court, with a healthy dose of Court-blaming in the middle.  Definitely worth a read for the way in which the Court is being implicated in political rhetoric.

Situating the current rhetoric in the history that Engels and Clark provide adds necessary depth to our contemporary understandings.


April 29, 2012 in Books, Courts and Judging, Current Affairs, Scholarship, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 13, 2012

Summer Reading List: Books by Supreme Court Justices? All 351Books?

33-14934-PrimaryImage.imageA good place to start might be any one of the books by the most prolific Justice, William O. Douglas, with fifty-one books.  Then one might try one of Justice Joseph Story's thirty-three books.  Then one could read a a book by William Howard Taft, best remembered as President, but also Chief Justice, who wrote thirty-one books.

Professor Ronald Collins has lost of suggestions in a terrific posting at SCOTUSblog discussing Supreme Court Justices as authors.  Collins provides a great overview with some noteworthy books highlighted (including a section on constitutional law), as well as organized by Justice. 

This bibliography of 351 books is a great resource!



March 13, 2012 in Books, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, November 10, 2011

Justice Stevens on Clinton v. Jones

The Court's unanimous opinion in Clinton v. Jones (1997), involving the postponement of the civil case by Paula Jones against then-President Clinton, is excerpted in most Constitutional Law casebooks, usually right after United States v. Nixon (1974), involving the subpoena duces tecum seeking Watergate material from then-President Richard Nixon.

_407332_paula_bill300The statement in the Clinton v. Jones opinion, authored by Justice Stevens, that the Jones litigation was "highly unlikely to occupy any substantial amount of petitioner’s time,"  seemed to have been proven false by subsequent events.  In his new book, Five Chiefs, Justice Stevens, defends his statement:

[T]he Court had been confronted with the question whether either the Constitution or respect for the office of the president required a federal district court to defer the trial of a damages claim against President Clinton until after the end of his term.  In a unanimous opinion that Bill [Rehnquist] assigned to me, we upheld the decisions of the lower courts denying the request for a stay of the trial.  Among the arguments that we rejected was a claim that permitting the trial to proceed would violate the doctrine of separation of powers.

While I am not aware of any significant scholarly criticism of the legal analysis in my opinion, numerous commentators have rather enthusiastically suggested that only the village idiot could have authored one statement that I made.  In my response to the argument that the burdens of the litigation would impair the president’s ability to discharge his official duties, I declare: "If the past is any indicator, it seems unlikely that a deluge of such litigation will ever engulf the Presidency.  As for the case at hand, if properly managed by the District Court, it appears to us highly unlikely to occupy any substantial amount of petitioner’s time.”  Clinton later gave deposition testimony that triggered his impeachment, which, in turn, obviously occupied a huge amount of his time.  These events, it is argued, proved my comments to have been ludicrous.

That appraisal depends on a failure to recognize both the difference between the trial proceedings and the unforeseen impeachment.  A postponement of the trial would not necessarily have justified a postponement of the president’s deposition.  Indeed, as the president’s lawyers stated at oral argument, a delay in the trial would have increased the need for depositions because of the risk that key witnesses’ memories might fade.  Given that case (Clinton v. Jones [1997]) was settled, we will never know just how much time a trial would have consumed.  We did know that our ruling did not give rise to the predicted avalanche of litigation.  And the impeachment proceedings were certainly not a part of “the case at hand” referred to in our opinion. 

Still the reaction to my words illustrates that an author is seldom the best judge of how readers will react to his work. 

 (emphasis added). 

Note however that Court did not simply uphold "the decisions of the lower courts denying the request for a stay of the trial," as Stevens states.  Instead, as Stevens' opinion for the Court stated:

we are persuaded that it was an abuse of discretion for the District Court to defer the trial until after the President leaves office. Such a lengthy and categorical stay takes no account whatever of the respondent's interest in bringing the case to trial. The complaint was filed within the statutory limitations period--albeit near the end of that period--and delaying trial would increase the danger of prejudice resulting from the loss of evidence, including the inability of witnesses to recall specific facts, or the possible death of a party.

Here's a quick overview of the case and developments from WaPo.

[image via]

November 10, 2011 in Books, Executive Authority, Executive Privilege, Gender, History, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Monday, October 24, 2011

Bork’s “75 page” Memo to Goldwater on the 1964 Civil Rights Act’s Unconstitutionality?

Did Robert Bork, as a law professor, write a “75 page” brief to Presidential Candidate Barry Goldwater arguing that the bill that would become the 1964 Civil Rights Act was unconstitutional?

Bork2Bork (pictured left) the controversial conservative and rejected Supreme Court nominee, has reappeared on the political scene as the co-chair of the legal advisory team of potential GOP Presidential candidate Mitt Romney.   He has recently also made news for opining that women are no longer discriminated against and do not need constitutional attention.

Bork has also long been famous for his argument that the 1964 Civil Rights Act, including Title VII, is unconstitutional.  Rand Paul has also made this argument, although at least one commentator distinguishes Rand Paul’s position from Goldwater’s based upon Goldwater’s “constitutional concerns” rooted in the “75 page brief” Bork sent to Goldwater as well as future Chief Justice William Rehnquist’s concerns.

When internet references to the “75 page” memo or brief mention a source, they cite to Richard Perlstein’s Before the Storm: Barry Goldwater.   Speaking on C-Span (written transcript provided), Perlstein in 2001 discussed Goldwater’s agonizing over the 1964 Civil Rights Bill which was resolved by the influence of Rehnquist’s statements and Bork’s 75 page memo against the Act.   In Perlstein’s book, he sources the Bork brief to James Perry, [A Report in Depth on] Barry Goldwater: A New Look at A Presidential Candidate.   Perry’s “Report in Depth” is a “Newsbook” peppered with photographs, published by the National Observer in 1964.   In the chapter “Men Around Goldwater,” the author names Bork as a “Goldwater favorite” and one of a number of law professors to whom “the Goldwater idea men went for advice” on the 1964 Civil Rights Bill.  Perry wrote:

The Goldwater staff asked for an objective, legal analysis by Professor Bork of the civil-rights bill.  They received a 75-page critique, which was used (along with other analyses) in preparing Mr. Goldwater’s statement against the bill.

 (at 25).

Scholars wishing to read the “75-page critique” by Bork sent to Goldwater - - - or to Goldwater’s staff - - - will have a difficult time obtaining it, as I learned when I asked faculty law librarians.  The memo is not in the seven volumes of Bork nomination materials compiled by Roy Mersky and J. Myron Jacobstein in their series of Supreme Court Nominees.  The Mersky and Jacobstein Volume 14-F, however, does include Bork’s notorious piece for The New Republic, “Civil Rights—A Challenge,” (August 31, 1963), arguing that the Act would be a “loss of liberty,” as well as the New Republic Editors’ reply and Bork’s rejoinder (here).  It is apparently not in the Goldwater papers at the Arizona Historical Foundation at Arizona State University or in the papers of Dean Burch, also at ASU, the Chair of the RNC in 1964.   As for the papers of Robert Bork, there may be some at the Library of Congress, although apparently Bork retains the authority to grant access.

Does the “75 page” memo still exist - - - perhaps a Xerox of a carbon copy - - - in someone’s files?  Did it ever?     

Almost a half-century has passed.  It is not that a missing document is nefarious (indeed, it sometimes seems a wonder that anything is preserved) or that Bork should be assumed not to have changed his opinions (indeed, he has recently stated that the “transition to a non-discriminatory society was much easier” than he thought it would be).  But page-number precise references to a document that is not available is intriguing. 

So, if you have a copy or have read a copy of that "75 page" memo, I’d love to hear from you.

[image: Robert Bork, 2007, via]

October 24, 2011 in Books, Commerce Clause, Congressional Authority, Courts and Judging, Current Affairs, Equal Protection, Federalism, Fourteenth Amendment, Gender, History, Profiles in Con Law Teaching, Race, Reconstruction Era Amendments, Scholarship, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Monday, September 26, 2011

Banned Books Week: Nickel and Dimed Makes the List of Most Banned Books

It's banned books week again.

NickelDimed This year one of the  "top ten" books being challenged, according to the American Library Association, is Nickel and Dimed: On (Not) Getting by in America, by Barbara Ehrenreich, with the reasons given as "drugs, inaccurate, offensive language, political viewpoint, religious viewpoint."

 Ehrenreich's more recent book, Bright-Sided: How the Relentless Promotion of Positive Thinking Has Undermined America, caused a bit of a stir as we discussed here, but the decade old Nickel and Dimed has recently become more controversial.  The objections seem to be to Ehrenreich's unpopular view of capitalism.  Ehrenreich's "update" on her book argues that things have gotten worse.

Banning Sherman Alexie's National Book Award winning novel, The Absolutely True Diary of a Part-Time Indian, on the list again this year, is understandable in the context of the history of banning books for sexual language.  A bit less understandable, but still within some interpretations of the sexual, is the number one book on this year's list yet again, And Tango Makes Three, a children's book based on the true story of two penguins in the Central Park Zoo who come together to raise a chick.  The problem, presumably, is that the penguins are both male. 

Yet the banning of Ehrenreich's Nickel and Dimed seems exceedingly problematical under the First Amendment.  While "obscenity" has a special (and devalued) position within First Amendment doctrine, first-person reporting that casts capitalism in an unfavorable light would seem to be the type of political speech that Americans most highly valued, in doctrine as well as practice.



September 26, 2011 in Books, First Amendment, Speech | Permalink | Comments (0) | TrackBack (0)