Thursday, May 1, 2014

Getting it Wrong: Even Supreme Court Justices Do It and What that Means for Grading Students

Grading, marking, and giving feedback on student exams, papers, and projects can be wearing, which perhaps explains why professors can succumb to the temptation to bemoan student "bloopers" and mistakes. 

But at the end of this semester,  a mistake in Justice Scalia's dissent in EPA v. EME Homer City Generation provides some perspective.

From the original opinion, here's the passage in Justice Scalia's dissent:

[Section] D. Plus Ça Change:
EPA’s Continuing Quest for Cost-Benefit Authority

The majority agrees with EPA’s assessment that “[u]sing costs in the Transport Rule calculus . . . makes good sense.” Ante, at 26. Its opinion declares that “[e]liminating those amounts that can cost-effectively be reduced is an efficient and equitable solution to the alloca­tion problem the Good Neighbor Provision requires the Agency to address.” Ibid. Efficient, probably. Equitable? Perhaps so, but perhaps not. See Brief for Industry Re­spondents 35–36. But the point is that whether efficiency should have a dominant or subordinate role is not for EPA or this Court to determine.

This is not the first time EPA has sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), confronted EPA’s contention that it could consider costs in setting NAAQS. The provision at issue there, like this one, did not expressly bar cost-based decisionmak­ing—and unlike this one, it even contained words that were arguably ambiguous in the relevant respect. . . .

[emphasis added]

And from the current opinion, here's the corrected passage:

[Section] D. Our Precedent

The majority agrees with EPA’s assessment that “[u]sing costs in the Transport Rule calculus . . . makes good sense.” Ante, at 26. Its opinion declares that “[e]liminating those amounts that can cost-effectively be reduced is an efficient and equitable solution to the allocation problem the Good Neighbor Provision requires the Agency to address.” Ibid. Efficient, probably. Equitable? Perhaps so, but perhaps not. See Brief for Industry Respondents 35–36. But the point is that whether efficiency should have a dominant or subordinate role is for Congress, not this Court, to determine.

This is not the first time parties have sought to convert the Clean Air Act into a mandate for cost-effective regulation. Whitman v. American Trucking Assns., Inc., 531 U.S. 457 (2001), confronted the contention that EPA should consider costs in setting NAAQS. The provision at issue there, like this one, did not expressly bar cost-based decisionmaking—and unlike this one, it even contained words that were arguably ambiguous in the relevant respect.

[empasis added]

Justice Scalia misidentified the party that argued on behalf of considering costs in Whitman v. American Trucking - - - an opinion that Justice Scalia authored in 2001 - - - and reversed it.  Indeed, the EPA opposed considering costs in Whitman v. American Trucking.  

DeweydefeatsThe mistake has attracted attention: TPM labels  it an "epic blunder,"  Salon calls it an "embarrassing error," and WSJ says it was "cringeworthy" and "unusually glaring."

Why the mistake?  Blame law clerks or sloppiness.  Recite "to err is human."  Or perhaps the mistake simply fit with the dissent's "shadow argument" (the EPA has been on a quest to expand its authority, as conveyed in the subtitle to the section) and so the actual fact became misremembered or overlooked.

But whatever the possible explanations, it's a good reminder for professors as we read "mistakes" by students who are, afterall, students, and do not have law clerks, proofreaders, years of experience, the highest position in the legal field, or the ability to correct mistakes after the final version of the exam or paper is submitted. 

 

May 1, 2014 in Courts and Judging, Current Affairs, News, Supreme Court (US), Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Thursday, April 17, 2014

Daily Read: NYT Editorial on Constitutionalizing Police Surveillance

With the announcement of the disbanding of the "Demographics Unit" in the NYC Police Department, some might think that litigation we've previously discussed about Muslim surveillance after 9/11, such the dismissal of a complaint about surveillance in New Jersey  and federal litigation in New York, is no longer viable.

An editorial from the Board of the New York Times today points to the larger (and longstanding) issues beyond the particular "Demographics" unit:

500px-Spy_silhouette_document.svgThis problem dates back to the 1960s and ’70s, when the department’s infamous “Red Squad” conducted what civil rights lawyers described as illegal surveillance of groups like the Black Panthers, who were acquitted on charges of conspiring to blow up department stores and police stations. The case became a class-action suit that included other political groups and was named for a plaintiff, Barbara Handschu.

Under a 1985 settlement, the city agreed to court-supervised investigation guidelines that were then loosened after the Sept. 11, 2001, attacks.

The editorial recommends that the city agree

to reinstate a provision of the original Handschu agreement that calls for an authority that includes high-level Police Department officials and a citizen appointee to review investigations into individuals or groups engaged in political activity. The point is not to obstruct those investigations, but to ensure that they are warranted and consistent with the Constitution.

 

April 17, 2014 in Criminal Procedure, Current Affairs, Interpretation, News | Permalink | Comments (0) | TrackBack (0)

Monday, April 14, 2014

Federal District Judge Rules Ohio's Same-Sex Marriage Recognition Ban Unconstitutional

In the widely anticipated opinion in Henry v. Himes,  Judge Timothy Black has ruled that Ohio Const. Art. XV, § 11 and  Ohio Rev. Code § 3101.01(C) denying legal recognition to the marriages of same-sex couples validly entered in other jurisdictions violates the Fourteenth Amendment.

Recall that Judge Black previously issued an opinion in Obergefell v. Kasich with a similar conclusion, although that opinion was limited to the particular plaintiffs.  Judge Black's preliminary injunction ruling in Obergefell was the first post-Windsor decision on same sex marriage, and interestingly used some of Justice Scalia's dissenting language to support his reasoning

740px-OhioWhile Obergefell involved a person who was dying, the plaintiffs in Henry are same-sex couples expecting children or with children.  The four plaintiff couples, who entered into valid marriages in other jurisdictions, seek to have the names of both parents recorded on their children’s Ohio birth certificates and a declaration that Ohio’s refusal to recognize valid same-sex marriages is unconstitutional.  Judge Black relied heavily on his previous rationale in Obergefell, and again found that while marriage is a fundamental right, the Supreme Court has not explicitly recognized it as such, and "the balancing approach of intermediate scrutiny is appropriate in this similar instance where Ohio is intruding into – and in fact erasing – Plaintiffs’ already- established marital and family relations."  Again, Judge Black footnotes Professor Steve Sanders work on the liberty interest in having one's marriage recognized. 

In the equal protection analysis, Judge Black does advance a distinct rationale for "heightened scrutiny" given that the children's birth certificates are involved.  He writes that the "Supreme Court has long held that disparate treatment of children based on disapproval of their parents’ status or conduct violates the Equal Protection Clause," citing Plyler v. Doe, 457 U.S. 202 (1982).  But, as in Obergefell, he also explicitly found that even if rational basis were applied, the Ohio provisions failed to satisfy it.

On the last page of Judge Black's opinion is the text of a song, "Happy Adoption Day" (1992).  For some, this will seem appropriate and celebratory.  For others, this will seem indecorous and treacly. Judge Black's previous statements have displeased at least one state representative - - - who has introduced a resolution in the Ohio legislature calling for the House of Representatives of Congress to initiate impeachment proceedings. 

 

April 14, 2014 in Current Affairs, Due Process (Substantive), Equal Protection, Family, Opinion Analysis, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Monday, April 7, 2014

The Constitutionality of Anti-LGBT Discrimination Laws: US and UK Comparisons Continued

Recall that in November 2013 we posted "UK Supreme Court Confronts Clash Between Freedom of Religion and Gay Equality: Is the Issue Coming to The US Supreme Court Soon?" 

The answer is "no," at least if "soon" means the case discussed in that post, Elane Photography v. Willock, a decision from the New Mexico Supreme Court in favor of a same-sex couple against a wedding photographer.  The petition concentrated on the First Amendment speech rights of the photographer rather than religious rights; the Court denied certiorari today. 

491px-Henry_VIII_Art_Gallery_of_Ontario
King Henry VIII, an important figure
in the "Church of England"

Meanwhile, Lady Brenda Hale, a Justice on the UK Supreme Court, appeared at a Comparative and Administrative Law Conference last month at Yale and spoke on the topic of "Religion and Sexual Orientation: The clash of equality rights,"  posting her written remarks on the UK Supreme Court site.  Justice Hall considered the Bull case which we discussed as well as cases from Canada and the EU, all presenting the same basic issue: should religious persons be exempt from anti-discrimination laws?  Justice Lady Hale offers some interesting observations: "it is fascinating that a country with an established church can be less respectful of religious feelings than one without."  She also discusses direct and indirect discrimination and reiterates a point she made in the Bull case itself: 

Both homosexuals and Christians were subject to the same laws requiring them not to discriminate in the running of their businesses. So if homosexual hotel keepers had refused a room to an opposite sex or Christian couple, they too would have been acting unlawfully.

This leads her to proclaim:

If you go into the market place you cannot pick and choose which laws you will obey and which you will not.

This may be an indication of how Lady Brenda Hale would rule in Hobby Lobby so recently argued before the United States Supreme Court, assuming the English Parliament would enact a statute similar to the Religious Freedom Restoration Act.

Another difference: The arguments before the UK Supreme Court are televised live.

April 7, 2014 in Comparative Constitutionalism, Current Affairs, Establishment Clause, First Amendment, Free Exercise Clause, Fundamental Rights, International, Religion, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Sunday, April 6, 2014

NSA Documents Database

Need to find a particular document or search for a particular name in the trove of items made available from the National Security Agency?  Or just want to look around?

The ACLU now has a handy database, available here.

520px-Old_Lady_with_Magnifying_Glass_LACMA_51.38.14As the announcement explains:

This tool will be an up-to-date, complete collection of previously secret NSA documents made public since last June. The database is designed to be easily searchable – by title, category, or content – so that the public, researchers, and journalists can readily home in on the information they are looking for.

We have made all of the documents text-searchable to allow users to investigate particular key words or phrases. Alternatively, the filter function allows users to sort based on the type of surveillance involved, the specific legal authorities implicated, the purpose of the surveillance, or the source of the disclosure. For example, you can have the database return all documents that both pertain to "Section 215" and "Internal NSA/DOJ Legal Analysis."

An important tool for scholars and advocates. 


[image via]

 

April 6, 2014 in Current Affairs, First Amendment, Fourth Amendment, State Secrets, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 1, 2014

Daily Read: Mother Jones on Hobby Lobby's Investments (in Contraception)

Last week's oral arguments in Hobby Lobby v. Sebelius and the companion case of Conestoga Wood Specialities Corp. v. Sebelius saw discussions about the substantial burden on the companies regarding providing contraceptive coverage and included Chief Justice Roberts noting that Hobby Lobby's religious beliefs included the provision of health insurance and Justice Kennedy specifically asking about why the company could not simply pay any fines or taxes. 

220px-Mother_Jones_1902-11-04
Mary Harris "Mother" Jones via

According to an article by Molly Redden in Mother Jones magazine today, Hobby Lobby does not exercise its religion in quite the same way when in comes to its 401(K) retirement plans.  Based on corporate disclosures, three-quarters of the funds (73 million) have holdings that "clashed" with the owners of Hobby Lobby's stated religious principles.  The corporation apparently did not avail itself of the faith-based investing that is often available. 

Under First Amendment free exercise doctrine as well as the Religious Freedom Restoration Act (RFRA), questioning sincerity is difficult and adherents to a religious belief need not be consistent in their beliefs.  Seemingly the only case in which a "contraceptive mandate" challenge suffered on these grounds is Eden Foods v. Sebelius. 

Nevertheless, this scenario could have served as the basis of an interesting hypothetical regarding the "substantial burden" on its religious beliefs the company and owners claim.

 

April 1, 2014 in Abortion, Current Affairs, First Amendment, Religion, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Disparate Views of the Secret Service: The Court and the Realities?

In the oral arguments last week in Wood v. Moss and the Court's 2012 decision in Reichle v. Howards, the Secret Service was center stage.  Recall that both cases involve qualified immunity for Secret Service agents against constitutional claims and raise the specter that the individual agents acted inappropriately.  And in both cases, there is some valorization of the agents and their difficult task of protecting the President (in Wood) and the Vice-President (in Reichle). 

800px-Robert_Warwick_in_Secret_Service

Arguing for the United States Government in Wood v. Moss, the Deputy Solicitor General expressed the fear that not upholding qualified immunity would lead to a "demoralization of the service leaning in the direction of being overly careful and therefore risking the life of the President" and that allowing discovery is "exactly the nightmare scenario that the Secret Service fears" including "
discovery into what the agents were thinking" and "what the Secret Service's policies were." 

And in Reichle, Justice Ginsburg concurring in the unanimous opinion, discusses the difficult facts in the case as well as deference to the agents' role:

Officers assigned to protect public officials must make singularly swift, on the spot, decisions whether the safety of the person they are guarding is in jeopardy. In performing that protective function, they rightly take into account words spoken to, or in the proximity of, the person whose safety is their charge. Whatever the views of Secret Service Agents Reichle and Doyle on the administration’s policies in Iraq, they were duty bound to take the content of Howards’ statements into account in determining whether he posed an immediate threat to the Vice President’s physical security. Retaliatory animus cannot be inferred from the assessment they made in that regard.

But one wonders how positive views of the Secret Service suffer given recurrent scandals involving the Secret Service.  As the United States Supreme Court was considering Reichle, there was the scandal in Colombia involving more than a dozen agents, but a later Homeland Security report (official synposis here) found that there was not "widespread sexual misconduct."  Most recently, at least one agent assigned to protect the President was reportedly "found drunk and passed out in a hotel hallway."  This latest scandal was reportedly not good news for the Secret Service's first woman director who has "tried to implement reforms."  One former Secret Service agent writes in a WaPo op-ed that the problem is not bad agents but bad leadership." 

But whether attributed to bad leadership or what might be called "bad apples," should these revelations about the bad judgments of secret service agents influence the Court's own judgments?  Doctrines such as qualified immunity and strict pleading requirements that prevent discovery serve to protect Secret Service agents from their "nightmares" (as the Deputy Solicitor General phrased it), but might they also insulate the Secret Service from responsibility for the nightmares they cause others. 

[image via]

April 1, 2014 in Courts and Judging, Criminal Procedure, Current Affairs, First Amendment, Fourth Amendment, News, State Secrets | Permalink | Comments (1) | TrackBack (0)

Thursday, March 27, 2014

Daily Read: Capital in the 21st Century

9780674430006In a review in this week's New Yorker, John Cassidy makes the case that the new book by Thomas Piketty, Capital in the Twenty-First Century, is one that "nobody interested in a defining issue of our era can afford to ignore."

This defining issue is economic inequality.  Piketty's book, translated from the French and published by Harvard University Press, is an examination of the phenomenon as well as a proposal for remediation. 

The proposal is a "wealth tax."  Perhaps that's a "political nonstarter" as Cassidy suggests and as Piketty seemingly acknowledges.  But perhaps it's not.

 

March 27, 2014 in Books, Current Affairs, Equal Protection, History, International, Scholarship | Permalink | Comments (2) | TrackBack (0)

Tuesday, March 25, 2014

Supreme Court Hears Oral Arguments in Hobby Lobby and Conestoga Wood Specialties on RFRA and the "Contraceptive Mandate"

Should corporations (or their owner/shareholders) be able to interpose a religious objection to a federal requirement that employers provide health insurance to employees that includes contraceptive coverage? 

Simplified, that's the question at the heart of the oral arguments today in the consolidated cases of Hobby Lobby v. Sebelius and Conestoga Wood Specialties Corp. v. Sebelius in which the Court granted certiorari in November.  The legal issues are complex (our primer is here and another here), but given the basic conflict, it's no wonder the case has attracted so much attention. Another good overview is Lyle Denniston's preview of the arguments for SCOTUSblog.

Recall that the Tenth Circuit's divided en banc opinion in Hobby Lobby essentially split 5-3 over the issue of whether a for-profit secular corporation has a right to free exercise of religion under the Religious Freedom Restoration Act (RFRA) and the First Amendment's Free Exercise Clause.  The majority essentially concluded there was such a right and that the right was substantially burdened by the requirement of the PPACA that employer insurance plans include contraception coverage for employees.

Recall also that the Third Circuit's divided panel opinion in Conestoga Woods rejected the contention that the corporation could raise a claim under RFRA, either as a corporation possessing free exercise of religion rights or under a "pass through" theory allowing the beliefs of the owners to pass to the corporate form.

Moreover, Hobby Lobby and Conestoga Woods are not the only two opinions on these issues.  A digest of some previous circuit court cases and some discussion of the controversy is here; the divided Seventh Circuit opinion is discussed here; and the ACLU has a helpful running tab on all the cases here. So, the Court's ultimate conclusion will impact a number of cases.

Today's 90 minute oral argument {transcript} in the consolidated cases began with Paul Clement representing the "private parties," Hobby Lobby and Conestoga Wood and then Solicitor General Donald Verrilli  representing the federal government, including Kathleen Sebelius as Secretary of Health and Human Services.  Not surprisingly, the questions to Clement largely came from Justices Kagan, Sotomayor, and Ginsburg, and the questions to Verrilli came from Justices Alito and Scalia, as well as Chief Justice Roberts.   Also not surprisingly, the arguments were peppered with slippery slopes, other analogies, questions of Congressional intent in passing RFRA, RFRA's relationship with First Amendment doctrine, and the relevance of the corporate form. 

The question as to the cost of not complying with the mandate (part of the substantial burden on the corporations under RFRA) was the subject of this rather interesting exchange during Paul Clement's argument:

JUSTICE KAGAN:  . . . .

And so the question is, why is there a substantial burden at all?

MR. CLEMENT: Well, just to be clear, we were talking about the same thing. So the option, the choice, is between paying a $475 million a year penalty and a $26 million a year penalty.  That's what Hobby Lobby faces.  So $2,000 per person - - -  ­­

JUSTICE KAGAN: No, between paying $2,000 per employee per year if Hobby Lobby does not provide ­­- - -

MR. CLEMENT: That's $26 million.

JUSTICE KAGAN: You know, Hobby Lobby is paying something right now for the - - -­­ for the coverage. It's less than what Hobby Lobby is paying for the coverage. There are employers all over the United States that are doing this voluntarily because they think that it's less.

CHIEF JUSTICE ROBERTS: I thought - - -­­ I thought that part of the religious commitment of the owners was to provide health care for its employees.

MR. CLEMENT: That is true, Mr. Chief Justice. It is also true that this ­­- - -

JUSTICE SOTOMAYOR: Well, if they want to do that, they can just pay a greater salary and let the employees go in on the exchange.

MR. CLEMENT: Exactly, which is, by the way, why comparing the $2,000 penalty to the cost of the health care is a false - - - ­­ it's a false comparison.

JUSTICE SOTOMAYOR: It's not called a penalty. It's called a tax. And it's calibrated ­­ - - - and it's calibrated ­­

CHIEF JUSTICE ROBERTS: She's right about that.

 (Laughter.)

 The laughter arises from Chief Justice Roberts' decision in NFIB v. Sebelius that the ACA was constitutional under Congress' power to tax, but it is worth noting that Roberts jumped in to assert the corporation's exercise of religion as including the provision of health insurance.  Justices Ginsburg and Kagan later come back to this point:

JUSTICE GINSBURG: There was a point made earlier, and I think you didn't mean to say this, that provision of health care is not part of their religious belief. Covering their employees for health care, that is not a religious tenet, right?

MR. CLEMENT: No, it actually is.  Again, it hasn't been the principal theory been litigated. But see, if you complaints and you go back to our briefs, you know, it's part of the religious beliefs that both the Hahns and the Greens have. They think it's actually important ­­- - -

JUSTICE KAGAN: But, Mr. Clement, you're not saying, are you, that their religious beliefs mandate them to provide health care? I thought that you were never making that claim.

MR. CLEMENT: I didn't have to make that claim in the course of this litigation. What I'm pointing out, though, is for purposes of the substantial burden analysis, it is perfectly appropriate to take into account that the 2,000 ­­ the $26 million in fines they would pay would not be the only thing that they would lose out if they are on that horn of the dilemma. They would also lose out all the additional wages they would have to pay, and they would be in this position of not offering health care, which is something they believe is important for their religion as well.

JUSTICE KAGAN: You know, I'm sure they seem like very good employers. And I'm sure they want to be good employers. But again, that's a different thing than saying that their religious beliefs mandate them to provide health insurance . . . .

If the "substantial burden" under RFRA is the most difficult element that the corporations to meet, then the strict scrutiny test applicable to any substantial burden is surely the government's most difficult task.  The questioning noted that the "least restrictive means" test in RFRA was clearly more difficult to meet than even the pre-Smith cases that RFRA explicitly sought to restore - - - and there did not seem to be even a glimmer that RFRA should be held unconstitutional (which would, of course, require a departure from O Centro Espirita Beneficiente Uniao Do Vegetal v. Gonzales). 

 Justice Breyer, asking his first question of the argument, requested that Verrilli provide a "precise answer" to the "least restrictive" argument that the government should simply pay for the contraceptive coverage.  Verrilli's argued that this suggestion by the corporations was not properly before the Court, but even if it was, that even the accommodation would be subject to a RFRA challenge.   Justice Alito suggested that Clement be asked about whether this would hapen, and indeed Clement was asked (by Justice Sotomayor).  Clement's reply:

We haven't been offered that accommodation, so we haven't had to decide what kind of objection, if any, we would make to that. But it's important to recognize that as I understand that litigation, the objection is not to the fact that the insurance or the provider pays for the contraception coverage. The whole debate is about how much complicity there has to be from the employer in order to trigger that coverage. And whatever the answer is for Little Sisters of the Poor, presumably you can extend the same thing to my clients and there wouldn't be a problem with that.

 Whether Justice Kennedy will be the deciding vote in this case is certain to be subject to much speculation and his questions will be closely read; our extended discussion is here.  But without question, the Justices seem sharply divided.

 

March 25, 2014 in Courts and Judging, Current Affairs, First Amendment, Gender, Oral Argument Analysis, Religion, Reproductive Rights, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, March 21, 2014

Canada Supreme Court: No to Nadon

In its opinion today in Reference re Supreme Court Act, ss. 5 and 6, the Supreme Court of Canada, with only one Justice dissenting, concluded that Marc Nadon would not be joining them on the nation's highest bench.

As we previously discussed, the nomination of Marc Nadon (objected to by some for its failure to advance gender parity), posed a constitutional question regarding whether a judge on the Federal Court of Appeal was eligible for the Supreme Court.   Cribbing from another of our discussions that quoted Canadian scholars Michael Plaxton and Carissima Mathen, here's the problem in a nutshell:

Section 5 of the Supreme Court Act states: “Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.” Section 6 provides: “At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that province.” Mr Justice Nadon was, at the time of his nomination, neither a judge of a Quebec superior court nor a current member of the practicing bar. It is therefore not clear that he is “among the advocates” of Quebec within the meaning of section 6.

800px-Supreme_Court_of_Canada,_Ottawa
Supreme Court of Canada

 

Today the Court decided that

A judge of the Federal Court or Federal Court of Appeal is ineligible for appointment to the Supreme Court of Canada under s. 6 of the Act.  Section 5 of the Act sets out the general eligibility requirements for appointment to the Supreme Court by creating four groups of people who are eligible for appointment:  (1) current judges of a superior court of a province, including courts of appeal; (2) former judges of such a court; (3) current barristers or advocates of at least 10 years standing at the bar of a province; and (4) former barristers or advocates of at least 10 years standing.  However, s. 6 narrows the pool of eligible candidates from the four groups of people who are eligible under s. 5 to two groups who are eligible under s. 6.  In addition to meeting the general requirements of s. 5, persons appointed to the three Quebec seats under s. 6 must be current members of the Barreau du Québec, the Quebec Court of Appeal or the Superior Court of Quebec.
The plain meaning of s. 6 has remained consistent since the original version of that provision was enacted in 1875, and it has always excluded former advocates.  By specifying that three judges shall be appointed “from among” the judges and advocates (i.e. members) of the identified institutions, s. 6 impliedly excludes former members of those institutions and imposes a requirement of current membership.  Reading ss. 5 and 6 together, the requirement of at least 10 years standing at the bar applies to appointments from Quebec.
This textual analysis is consistent with the underlying purpose of s. 6 and reflects the historical compromise that led to the creation of the Supreme Court as a general court of appeal for Canada and as a federal and bijural institution.  Section 6 seeks (i) to ensure civil law expertise and the representation of Quebec’s legal traditions and social values on the Court, and (ii) to enhance the confidence of Quebec in the Court.  This interpretation is also consistent with the broader scheme of the Act for the appointment of ad hoc judges, which excludes judges of the federal courts as ad hoc judges for Quebec cases.

The Court's opinion seems well-reasoned, careful, and right.  And while its effect is certainly cataclysmic to Nadon (and perhaps to his conservative supporters), it may be less so for Canadian politics ultimately, and even less so for Canadian constitutional law doctrinally.  Nevertheless,  Nadon's appointment to the Supreme Court would have changed Canadian Constitutional law.  And certainly, the nomination of a Justice to the nation's highest court being deemed ineligible to serve on that Court by the Justices of the Court themselves is certainly dramatic.

 

March 21, 2014 in Comparative Constitutionalism, Courts and Judging, Current Affairs | Permalink | Comments (0) | TrackBack (0)

Sunday, March 16, 2014

Daily Read: Lea Brilmayer Argues the Crimean Referendum is Invalid - - - and Unconstitutional

In an op-ed for The Guardian, Professor Lea Brilmayer contends that not only is the Crimean referendum regarding joining Russia problematic given the presence of Russian troops, but then

there's a bigger problem: the referendum seems inconsistent with the Ukrainian constitution, which says all Ukrainians would have to vote on Crimea’s secession – not just those living in Crimea.

Indeed, Title X of the Constitution of Ukraine governs "The Autonomous Republic of Crimea" and does not seem to provide for secession.  Yet questions of secession are vexing, even in the United States, as we've discussed.  

CatonWoodvilleLightBrigade
"Charge of the Light Brigade" via

March 16, 2014 in Comparative Constitutionalism, Current Affairs | Permalink | Comments (0) | TrackBack (0)

Monday, March 10, 2014

Daily Video: Edward Snowden Speaks

"I took an oath to support the Constitution, and I felt the Constitution was violated on a massive scale," Edward Snowden said in his video conference delivered from his asylum in Russia to the South By Southwest (sxsw) Interactive Festival. 

Here's the video:

 

 Some good analysis at LATimes.  [to be updated]

March 10, 2014 in Current Affairs, First Amendment, Fourth Amendment, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Thursday, March 6, 2014

Massachusetts Supreme Court on Upskirting

In its unanimous opinion in Commonwealth v. Robertson, the Supreme Judicial Court of Massachusetts avoided the constitutional challenge to the state's statutory prohibition of "secretly photographing or videotaping a person 'who is nude or partially nude,'" G.L. c. 272, § 105 (b ), by interpreting the statute not to apply to taking photographs at the areas under women's skirts ("upskirting").

The defendant had argued that if § 105 (b ) "criminalizes the act of photographing a fully clothed woman under her skirt while she is in a public place, it is both unconstitutionally vague and overbroad," but because the court "concluded that § 105 (b ) does not criminalize the defendant's alleged conduct," it did not reach the constitutional questions.

Cameralucida01

Yet, as in many cases, the court's statutory interpretation does occur in the shadow of the constitutional challenge.  The court reasoned that the statute "does not penalize the secret photographing of partial nudity, but of "a person who is ... partially nude" (emphasis in original).  Courts have long struggled with definitions of "nudity" - - - recall the United States Supreme Court's recent foray into this area in FCC v. Fox with an oral argument that drew attention to the nude buttocks in the courtroom decor.

Additionally, the court reasoned that the statutory element of in "such place and circumstance [where the person] would have a reasonable expectation of privacy in not being so photographed" did not cover the alleged acts of photography in a public place, such as the Massachusetts Bay Transportation Authority (MBTA) trolley.  The court rejected the Commonwealth's argument emphasizing the "so" in "so photographed" - - - that "because a female MBTA passenger has a reasonable expectation of privacy in not having the area of her body underneath her skirt photographed, which she demonstrates by wearing the skirt" by interpreting "so" as simply referential.

The court concluded that at the

core of the Commonwealth's argument . . . is the proposition that a woman, and in particular a woman riding on a public trolley, has a reasonable expectation of privacy in not having a stranger secretly take photographs up her skirt. The proposition is eminently reasonable, but § 105 (b ) in its current form does not address it.

And the court noted that in the past legislative session proposed amendments to § 105 were before the Legislature that appeared to attempt to address precisely the type of "upskirting" conduct at issue in the case.  Given the court's opinion in Robertson, this issue will most likely be again before the Massachusetts legislature.

[image via]

March 6, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Gender, Opinion Analysis, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Monday, March 3, 2014

Justice Scalia's Dissents and the Post Windsor Same-Sex Marriage Cases

There have been a spate of federal judges declaring state constitutional or statutory provisions banning recognition of same-sex marriage unconstitutional under the Fourteenth Amendment: 

De Leon v. Perry, from the Western District of Texas;
Bostic v. Rainey  from the Eastern District of Virginia;
Bourke v. Beshear from the Western District of Kentucky; 
Bishop v. United States from the Northern District of Oklahoma;
Obergefell v. Wymyslo from the Southern District of Ohio;
Kitchen v. Herbert, from the District of Utah;
Lee v. Orr applicable only to Chicago.

Other than Lee v. Orr, in which the judge was only ruling on an earlier start date for same-sex marriage than the Illinois legislature had declared, the judges in each of these cases relied on Justice Scalia's dissenting opinions.

In "Justice Scalia’s Petard and Same-Sex Marriage," over at CUNY Law Review's "Footnote Forum," I take a closer look at these cases and their relationship to Shakespeare's famous phrase from Hamlet.

 

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"A petard, from a seventeenth century manuscript of military designs" via

 

 

March 3, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fourteenth Amendment, Fundamental Rights, Sexual Orientation, State Constitutional Law, Supreme Court (US), Theory, Weblogs | Permalink | Comments (0) | TrackBack (0)

Saturday, March 1, 2014

Daily Read: Judith Resnik on a Different Type of Secret Court

In her op-ed in the NYT, entitled "Renting Judges for Secret Rulings," ConLawProf Judith Resnik (pictured below) asks "Should wealthy litigants be able to rent state judges and courthouses to decide cases in private and keep the results secret?," and quickly adds that the answer should be an "easy no."

But she argues that the recent Delaware legislation - - - declared unconstitutional by a divided panel of the Third Circuit as we previously discussed  - - - threatens to subvert access to the courts should Delaware be successful in its petition for certiorari. 

Resnik writes:

The Delaware legislation is a dramatic example of rich litigants using their resources to close court systems that taxpayers support and constitutions require. But the problem goes beyond Delaware. To honor constitutional commitments that “all courts shall be open,” the court should refuse the Delaware judges’ request, and Congress should restore rights to public courts for consumer and employment disputes.

Resnick_judith

Resnik's excellent work on "democratic courtrooms" makes her the perfect scholar to address the possibility of anti-democratic courtrooms.

[image of Judith Rensik via]

March 1, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, February 27, 2014

Ninth Circuit Orders "Innocence of Muslims" Video Taken Down

The intersection of First Amendment and copyright is not always well-marked and its certainly murky in the Ninth Circuit's divided opinion in Garcia v. Google, involving the controversial "Innocence of Muslims" video posted on YouTube (owned by Google, Inc.). 

Writing for the majority, Chief Judge Alex Kozinski sets the scene:

While answering a casting call for a low-budget amateur film doesn’t often lead to stardom, it also rarely turns an aspiring actress into the subject of a fatwa. But that’s exactly what happened to Cindy Lee Garcia when she agreed to act in a film with the working title “Desert Warrior.”

The film’s writer and producer, Mark Basseley Youssef—who also goes by the names Nakoula Basseley Nakoula and Sam Bacile—cast Garcia in a minor role. Garcia was given the four pages of the script in which her character appeared and paid approximately $500 for three and a half days of filming. “Desert Warrior” never materialized. Instead, Garcia’s scene was used in an anti-Islamic film titled “Innocence of Muslims.” Garcia first saw “Innocence of Muslims” after it was uploaded to YouTube.com and she discovered that her brief performance had been partially dubbed over so that she appeared to be asking, “Is your Mohammed a child molester?”

These, of course, are fighting words to many faithful Muslims and, after the film aired on Egyptian television, there were protests that generated worldwide news coverage. An Egyptian cleric issued a fatwa, calling for the killing of everyone involved with the film, and Garcia soon began receiving death threats. She responded by taking a number of security precautions and asking that Google remove the video from YouTube.

The copyright issue seems to be whether an actor can copyright her performance and how issues such as fraud and work-for-hire fit into such an analysis.  Yet even if Garcia prevails in her copyright claim, a First Amendment issue arises with the relief - - - a preliminary injunction.  The majority gives short shrift to Google's First Amendment argument raising such an argument:

The problem with Google’s position is that it rests entirely on the assertion that Garcia’s proposed injunction is an unconstitutional prior restraint of speech. But the First Amendment doesn’t protect copyright infringement. Cf. Eldred v. Ashcroft, 537 U.S. 186, 219–220 (2003). Because Garcia has demonstrated a likelihood of success on her claim that “Innocence of Muslims” infringes her copyright, Google’s argument fails. The balance of equities therefore clearly favors Garcia and, to the extent the public interest is implicated at all, it, too, tips in Garcia’s direction.

(Recall that the Court in Eldred upheld the Sonny Bono Copyright Term Extension Act and found copyright generally consistent with the First Amendment).

Dissenting, Judge N.R. Smith argued that the First Amendment should be weighed heavily as the public interest militating against a preliminary injunction - - - but only because he believes there is no statutory claim for copyright infringement:

The public’s interest in a robust First Amendment cannot be questioned. See Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 974 (9th Cir. 2002). Opposite this vital public interest is Garcia’s allegation of copyright infringement. Properly enforcing the Copyright Act is also an important public interest. See Small v. Avanti Health Sys., LLC, 661 F.3d 1180, 1197 (9th Cir. 2011). Indeed, if Google were actually infringing Garcia’s copyright, the First Amendment could not shelter it. See Eldred v. Ashcroft, 537 U.S. 186, 219–20 (2003).

But the case at bar does not present copyright infringement per se. Instead (in an unprecedented opinion), the majority concludes that Garcia may have a copyright interest in her acting performance. Maj. op. at 10. As a result, Google’s contention, that issuing a preliminary injunction on these facts may constitute a prior restraint of speech under the First Amendment, identifies an important public interest.

As Judge Kozinski's majority opinion notes, this is "a troubling case."  But while the majority is troubled by the deception of and possible harm to Garcia, others are more troubled by the First Amendment implications of ordering any material removed from YouTube.  YouTube has complied, but has availed itself of the oft-suggested remedy of "more speech" as in the image below:

Screen Shot 2014-02-27 at 12.17.45 PM

February 27, 2014 in Courts and Judging, Current Affairs, Film, First Amendment, Opinion Analysis, Religion, Speech, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 26, 2014

Federal Judge Declares Texas Same-Sex Marriage Ban Unconstitutional

Judge Orlando Garcia's opinion in DeLeon v. Perry  issuing a preliminary injunction against a state constitutional same-sex marriage ban because it is most likely unconstitutional under the Fourteenth Amendment today marks the sixth time in recent weeks that a federal judge has reached such a conclusion.

Indeed, Judge Garcia's opinion relies upon these previous opinions in Bostic v. Rainey  from the Eastern District of Virginia, Bourke v. Beshear from the Western District of Kentucky;  Bishop v. United States from the Northern District of Oklahoma, Obergefell v. Wymyslo from the Southern District of Ohio, and Kitchen v. Herbert, from the District of Utah, as well as upon the Supreme Court's opinion in United States v. Windsor declaring §3 of DOMA unconstitutional.

800px-1866_Johnson_Map_of_Texas_-_Geographicus_-_Texas-johnson-1866Judge Garcia's 38 page opinion begins with an extensive discussion of the parties, the statutory and state constitutional scheme in Texas barring same sex marriage, and even a discussion of the "national debate on same sex marriage beginning with the Hawai'i Supreme Court's 1993 decision in Baehr v. Lewin.   As a preliminary matter, he not only analyzes the standing issue, but also the United States Supreme Court's summary disposition in Baker v. Nelson, 409 U.S. 810 (1972), which would seem to have been rendered irrelevant by Windsor.

On the merits - - - or more properly, on the "likelihood to succeed on the merits" prong of the preliminary judgment analysis - - - Judge Garcia's analysis is well-crafted and closely reasoned. 

Regarding equal protection, his analysis of the contention that sexual orientation merits heightened scrutiny is well-done, although he ultimately concludes that it is unnecessary to apply heightened scrutiny because "Texas' ban on same-sex marriage fails even under the most deferential rational basis level of review."  He concludes that the two government interests that the State proffers as supporting the same sex marriage ban as failing rational basis review.  First, the state's desire "to increase the likelihood that a mother and a father will be in charge of childrearing" is reinterpreted simply as childrearing.  As such, while the interest may be legitimate, it is not rationally served by banning same-sex marriage.  Second, the state's desire "to encourage stable family environments for responsible procreation" is similarly not served.  Third, Judge Garcia discusses "tradition," that while it was not explicitly advanced by the State, undergirds many of the State's arguments.  Here Judge Garcia finds that the interest is not legitmate.

In his analysis of due process, Judge Garcia, like Judge Allen in Bostic, finds marriage to be a fundamental right.  Judge Garcia marshalls the Supreme Court precedent thusly:

The State does not dispute that the right to marry is one of the fundamental rights protected by the United States Constitution. Oral Arg. Tr. p. 37 (arguing Texas marriage law does not violate Plaintiffs' "fundamental" right to marry). See, e.g., Zablocki v. Redhail, 434 U.S. 374, 384 (1978) ("[D]ecisions of this Court confirm that the right to marry is of fundamental importance for all individuals."); United States v. Kras, 409 U.S. 434, 446 (1973) (concluding the Court has come to regard marriage as fundamental); Loving v. Virginia, 388 U.S. 1, 12 (1967) ( The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men."); Skinner v. Okla. ex. rel. Williamson, 316 U.S. 535, 541 (1942) (noting marriage is one of the basic civil rights of man fundamental to our existence and survival); Maynard v. Hill, 125 U.S. 190, 205, 211 (1888) (characterizing marriage as "the most important relation in life" and as "the foundation of the family and society, without which there would be neither civilization nor progress.").

He thus applies strict scrutiny and the same-sex marriage ban fails.

Judge Garcia also considers the failure to recognize an out of state same-sex marriage, as required by Texas law, and subjects this to rational basis, and analogizing to Windsor, finds this also easily fails.The opinion does seemingly address a popular audience, but even here Judge Garcia grounds his rhetoric in precedent:

Today's Court decision is not made in defiance of the great people of Texas or the Texas Legislature, but in compliance with the United States Constitution and Supreme Court precedent. Without a rational relation to a legitimate governmental purpose, state-imposed inequality can find no refuge in our United States Constitution. Furthermore, Supreme Court precedent prohibits states from passing legislation bom out of animosity against homosexuals (Romer), has extended constitutional protection to the moral and sexual choices of homosexuals (Lawrence), and prohibits the federal government from treating state-sanctioned opposite-sex marriages and same-sex marriages differently (Windsor).

Judge Garcia stayed his opinion, mindful of the stay in Herbert v. Kitchen. Thus until the Fifth Circuit hears the case - - - or another decision - - - same sex marriages will not be occurring in Texas.

[image: map of Texas circa 1866 via]

February 26, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Sexual Orientation | Permalink | Comments (0) | TrackBack (0)

Saturday, February 22, 2014

Same-Sex Marriage in Chicago, but not all of Illinois until June 1

In her very brief opinion and order in Lee v. Orr, United States District Judge Sharon Johnson Coleman found that Illinois' same-sex marriage ban - - - already changed by the legislature but not effective until June 1, 2014 because of state constitutional requirements  - - - was unconstitutional.  

The judge's reasoning was understandably scanty: Not only did the parties' agree that summary judgment was appropriate because there was no disputed issues of fact, but they essentially agreed that there were not disputed issues of law:

There is no dispute here that the ban on same-sex marriage violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and infringes on the plaintiffs’ fundamental right to marry. Indeed, the defendant and intervenor have joined in plaintiffs’ motion, with the caveat the defendant David Orr is bound to follow the law in Illinois.

The sticking points were the remedies.

First, and less sticky, was the timing.  The judge quoted Martin Luther King for her reasoning to extend previous rulings:

the focus in this case shifts from the “we can’t wait” for terminally ill individuals to “why should we wait” for all gay and lesbian couples that want to marry. To paraphrase Dr. Martin Luther King, Jr.: the time is always ripe to do right. MARTIN LUTHER KING JR., WHY WE CAN’T WAIT 74 (1964).

Chicago map 1871

 

Second, and stickier, was the place:

The plaintiffs are asking this Court to strike down a state statute, although they have brought suit solely against the Cook County Clerk. . . . Although this Court finds that the marriage ban for same-sex couples violates the Fourteenth Amendment’s Equal Protection Clause on its face, this finding can only apply to Cook County based upon the posture of the lawsuit.

Absent additional litigation - - - and different lawyering - - - same-sex marriage in Illinois is available in Chicago now and the rest of the state starting June 1.

[image: map of Chicago, circa 1871, via]

February 22, 2014 in Courts and Judging, Current Affairs, Equal Protection, Family, Fundamental Rights, Sexual Orientation, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Friday, February 14, 2014

Federal District Judge Declares Virginia's Same-Sex Marriage Ban Unconstitutional

Judge Arenda Wright Allen's opinion in Bostic v. Rainey concludes that Virginia's statutory and state constitutional provisions banning same-sex marriages or their recognition violates the Fourteenth Amendment's Due Process and Equal Protection Clauses.

Judge Allen's due process analysis begins by declaring that there "can be no serious doubt that in America the right to marry is a rigorously protected fundamental right" and she therefore subjects Virginia's marriage laws to strict scrutiny.  Given this formulation, she easily concludes that the state's proferred interests of tradition, federalism, and  "responsible procreation" coupled with "optimal child rearing" are not satisfactory.  The analysis often reverts to the language of lesser scrutiny, including this explicit statement regarding the procreation/child-rearing interest:

This rationale fails under the applicable strict scrutiny test as well as a rational-basis review. Of course the welfare of our children is a legitimate state interest. However, limiting marriage to opposite-sex couples fails to further this interest. Instead, needlessly stigmatizing and humiliating children who are being raised by the loving couples targeted by Virginia’s Marriage Laws betrays that interest.

711px-1848_Greenleaf_Map_of_Virginia_-_Geographicus_-_Virginia-greenleaf-1848Judge Allen's equal protection analysis is substantially shorter and makes the articulates the application of rational basis scrutiny even more explicit:

Virginia’s Marriage Laws fail to display a rational relationship to a legitimate purpose, and so must be viewed as constitutionally infirm under even the least onerous level of scrutiny. . . . 

The legitimate purposes proffered by the Proponents for the challenged laws—to promote conformity to the traditions and heritage of a majority of Virginia’s citizens, to perpetuate a generally-recognized deference to the state’s will pertaining to domestic relations laws, and, finally, to endorse "responsible procreation"—share no rational link with Virginia Marriage Laws being challenged. The goal and the result of this legislation is to deprive Virginia’s gay and lesbian citizens of the opportunity and right to choose to celebrate, in marriage, a loving, rewarding, monogamous relationship with a partner to whom they are committed for life. These results occur without furthering any legitimate state purpose.

Judge Allen's opinion may be criticized as being longer on rhetoric than on exemplary legal analysis - - - a charge similar to that leveled against Justice Kennedy's opinion for the Court in United States v. Windsor declaring §3 of DOMA unconstitutional, upon which Judge Allen rightly relies.  Judge Allen's numerous of invocations of Loving v. Virginia - - - including beginning the opinion with an extensive quote from Mildred Loving - - - have special resonance in Virginia.  Yet at times, lofty language veers toward inaccuracy, as when the opinion states that "Our Constitution declares that 'all men' are created equal."  (That's the wording of the Declaration of Independence not the Fourteenth Amendment's Equal Protection Clause).  Others may contest that there can be "no serious doubt" that marriage is a fundamental right. 

Nevertheless, Judge Allen's opinion follows on the heels of four other opinions by federal district judges reaching the same conclusion about their respective state laws and constitutional provisions:  Bourke v. Beshear from the Western District of Kentucky;  Bishop v. United States from the Northern District of Oklahoma, Obergefell v. Wymyslo from the Southern District of Ohio, and Kitchen v. Herbert, from the District of Utah (now stayed). 

Judge Allen stayed the injunction against enforcement of the Virginia same-sex marriage ban, pending resolution by the Fourth Circuit. 

But recall that the Virginia Attorney General has declared that he will not defend Virginia's same-sex marriage ban, a position that might mean that Judge Allen's opinion never reaches the Fourth Circuit as we analyzed here.

[image: 1848 map of Virginia via]

February 14, 2014 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Interpretation, Opinion Analysis, Race, Sexual Orientation | Permalink | Comments (2) | TrackBack (0)

Tuesday, February 11, 2014

Calls for Congressional Action on Surveillance: "The Day We Fight Back"

Labeled "The Day We Fight Back Against Mass Surveillance," February 11, 2014 has been designated as a day to "make calls and drive emails to lawmakers" regarding two pieces of legislation.

The activists support the USA Freedom Act, S 1599 ("Uniting and Strengthening America by Fulfilling Rights and Ending Eavesdropping, Dragnet-collection, and Online Monitoring Act).  The Electronic Frontier Foundation supports the bill, but considers it a "floor not a ceiling" and discusses its limitations including not covering persons outside the US, encryption, and standing issues.  The ACLU legislative counsel "strongly supports" the legislation, noting that while it is not perfect, it is an "important first step," and highlights the fact that one of the sponsors in the House of Representatives is Rep. Jim Sensenbrenner (R-WI), who "was the lead author of the Patriot Act and now is the chair of the House's Subcommittee on Terrorism and Crime."

The activists urge the rejection of The FISA Improvements Act S 1631, most closely associated with the bill's sponsor, Dianne Feinstein.

Daywefightback

While focused on legislative action, many of the materials and arguments ground themselves in the First and Fourth Amendments.  Organizers state that the day commemorates Aaron Swartz, who also invoked constitutional norms.

February 11, 2014 in Congressional Authority, Criminal Procedure, Current Affairs, Executive Authority, First Amendment, Fourth Amendment, State Secrets, Web/Tech | Permalink | Comments (0) | TrackBack (0)