Thursday, June 20, 2013

Court Decides "Prostitution Pledge" Case: Federal Statute Violates First Amendment

661px-World_mapThe United States Supreme Court today decided United States Agency for International Development v. Alliance for Open Society International, Inc., involving a First Amendment challenge to a provision of federal funding statute requiring some (but not other) organizations to have an explicit policy opposing sex work. It held the provision unconstitutional and affirmed the Second Circuit opinion, which the Circuit had  refused to review en banc, and which conflicted with a Sixth Circuit opinion. 

The Court's opinion, authored by Chief Justice Roberts, is relatively brief - - - a mere 15 pages - - - first acknowledges that the provision in the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 would clearly violate the First Amendment's compelled speech doctrine if it were a direct regulation of speech.  In terms of an attached condition to spending - - - the unconstitutional conditions doctrine - - - Roberts explained that

the relevant distinction that has emerged from our cases is between conditions that define the limits ofthe government spending program—those that specify the activities Congress wants to subsidize—and conditions that seek to leverage funding to regulate speech outside the contours of the program itself.

He elaborated on this distinction by contrasting Regan v. Taxation With Representation of Washington, decided in 1983 and upholding a requirement that nonprofit organizations seeking tax-exempt status under 26 U. S. C. §501(c)(3) not engage in substantial efforts to influence legislation, with FCC v. League of Women Voters of California, decided in 1984, holding unconstitutional a condition on federal financial assistance to noncommercial broadcast television and radio stations that prohibited all editorializing, including with private funds.  

The opinion then both distinguished and relied upon Rust v. Sullivan, an opinion that was central to oral argument and the briefs.  The Court noted that the Government's only positive precedent was Holder v. Humanitarian Law Project, but held that it was essentially inapposite.  Instead, although the lines could be difficult to draw, the Court held that

the Policy Requirement goes beyond preventing recipients from using private funds in a way that would undermine the federal program. It requires them to pledge allegiance to the Government’s policy of eradicating prostitution. 

The opinion closed by reciting West Virginia Bd. of Ed. v. Barnette's famous quote:

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

If some will not be surprised about Roberts' position given his expressions at oral argument, even fewer will be surprised by Justice Scalia.  Dissenting, Justice Scalia - - - never a fan of unconstitutional conditions doctrine - - - joined by Justice Thomas finds Barnette a "distraction" from the real issues.  He criticizes the majority's distinction between central and not, but also finds that there is no coercion.  He analogizes to "King Cnut’s commanding of the tides" to conclude there is "no compulsion at all," simply "the reasonable price of admission to a limited government-spending program that each organization remains free to accept or reject."  Of course, the majority, by considering whether or not a condition is central, essentially held that the price of admission was simply not "reasonable."  But for Scalia, requiring an "ideological commitment" as a condition to government funding should be acceptable, and the "real evil" of the opinion is a type of floodgates argument:  "One can expect, in the future, frequent challenges to the denial of government funding for relevant ideological reasons."   More broadly, he extends his argument beyond funding, stating that while one may be a Communist or anarchist, members of the legislature, judiciary, and executive are bound by the Constitution to take an oath affirming it, Art. VI, cl. 3. 

RR
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June 20, 2013 in Cases and Case Materials, First Amendment, Gender, International, Opinion Analysis, Sexuality, Speech, Spending Clause | Permalink | Comments (1) | TrackBack (0)

Friday, May 31, 2013

Daily Read: Angela Onwuachi-Willig on Inter-Racial Love and Marriage

While for many Conlawprofs Loving v. Virginia is the "face" of love and marriage across racial divides, looking both backward and forward from the 1967 case can add depth to teaching and scholarship about the issue.  9780300166828(And if it seems not to be an issue any longer, a quick look at the "controversy" caused by a cereal advertisement featuring an interracial couple and their child is worth considering).

Professor Angela Onwuachi-Willig's new book, According to Our Hearts: Rhinelander v. Rhinelander and the Law of the Multiracial Family, just published by Yale University Press, provides that depth.

Her exploration focuses on Rhinelander v. Rhinelander, a case that did not involve a constitutional issue, except to the extent that racial categorizations always implicate issues of constitutionalism and equality. As Onwuachi-Willig describes in a piece in the UC Davis Law Review,

Alice Beatrice Jones was a working-class woman, who met Leonard Kip Rhinelander, a wealthy white male descendant of the Huguenots and heir to millions of dollars, in the fall of 1921. . . . [They married in a private ceremony and] Just two weeks later, on November 26, 1924, Leonard filed for annulment of his marriage to Alice. He argued that Alice had lied to him about her race. Leonard claimed that Alice had committed fraud that made their marriage void by telling him that she was white and by failing to inform him that she was of “colored blood.”

Rather than litigate her whiteness as many expected, she argued that he knew her racial status. 

 The trial of the Rhinelanders proved to be shocking on many fronts. It involved racy love letters, tales of pre-marital lust and sex, and the exhibition of Alice’s breasts, legs, and arms in the courtroom to prove that Leonard, who had seen her naked before marriage, would have known that she was colored at the time of their nuptials. What was most scandalous about the Rhinelander case, however,  was the trial’s end. The jury returned a verdict for Alice, determining that Leonard knew her racial background before marriage yet married her anyway. 

Onwuachi-Willig's book also provides contemporary arguments that current law fails to protect interracial couples, especially given the privileges that continue to be accorded on the basis of marriage.

As we wait for both Fisher v. UT and the same-sex marriage cases of Perry and Windsor, or as we contemplate their meanings once the opinions are rendered, Onwuachi-Willig's book is an important and pleasurable read.

RR

 

May 31, 2013 in Books, Family, Fourteenth Amendment, Gender, History, Race, Sexuality | Permalink | Comments (0) | TrackBack (0)

Thursday, May 16, 2013

Federal Complaint for Unconstitutional Sex Assignment Surgery on Infant

400px-3D_gender_symbol.svgThe surgical "assignment" of sex/gender to an infant born with "ambiguous" genitals is a problem that has garnered much attention.

The Constitutional Court of Colombia issued a series of opinions beginning in 1995, analyzed in a 2004 law review article by Kate Haas, Who Will Make Room for the Intersexed?, that recognize a constitutional right of children, albeit limited, with regard to the surgery.  A ground-breaking symposium issue of Cardozo Journal of Law & Gender in 2005 engages with many of the legal issues and proposed solutions, often recognizing the limits of constitutional remedies in the United States given that the surgeries are usually the result of private action.

But a complaint filed this week, M.C. v. Aaronson, by the Southern Poverty Center claims a violation of both substantive and procedural due process under the Fourteenth Amendment by South Carolina doctors who performed genital surgery on a child in state custody (foster care).  M.C., now 8 years old, brings the case through his adoptive parents. 

The substantive due process claim is a relatively obvious one, building on established United States Supreme Court cases finding a right to be free of coerced medical procedures including Cruzan v. Director, Missouri Department of Health (1990).  The right is a bit muddled, however, given that the highly discredited 1927 case of Buck v. Bell has never been actually overruled; the declaration that castration was as unconstitutional penalty for a crime in Skinner v. Oklahoma rested on equal protection grounds. 

The procedural due process claim is more novel, contending that the minor was entitled to a pre-deprivation hearing before the surgery.  Such a hearing would presumably be of the type that Erin Lloyd recommended for all minors (whether in state custody or not) in her article From the Hospital to the Courtroom: A Statutory Proposal for Recognizing and Protecting the Legal Rights of Intersex Children in the Cardozo Journal of Gender and Law Symposium issue. 

An accompanying lawsuit filed in state court alleges medical malpractice and failure to obtain informed consent, raising the same underlying facts and many of the same issues, but under state law.

Southern Poverty Center has produced a video featuring the parents and outlining the facts of the case:

 

 This is definitely a case to watch.

RR
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May 16, 2013 in Cases and Case Materials, Comparative Constitutionalism, Due Process (Substantive), Fourteenth Amendment, Gender, Medical Decisions, Procedural Due Process, Sexuality, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Monday, April 22, 2013

Oral Arguments in USAID v. Alliance for Open Society, the "Prostitution Pledge"

The Court heard oral arguments today, sans Justice Kagan, in United States Agency for International Development v. Alliance for Open Society International, Inc., involving a First Amendment challenge to a provision of federal funding statute requiring some (but not other) organizations to have an explicit policy opposing sex work. 

 

Courtesan_in_a_Window,
Courtesan in a Window, 18th C.
The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (“Leadership Act”), 22 U.S.C. § 7601 et seq. provides: "No funds made available to carry out this chapter, or any amendment made by this chapter, may be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking, except that this subsection shall not apply to the Global Fund to Fight AIDS, Tuberculosis and Malaria, the World Health Organization, the International AIDS Vaccine Initiative or to any United Nations agency"

 

In other words, a NGO must have a "prostitution pledge" - - - actually, an anti-prostitution pledge - - - as a condition of receiving funds, unless it is one of the "grandfathered" NGOs.   The question is whether this pledge is compelled speech and whether any compelled speech is sufficient to distinguish the situation from Rust v. Sullivan.  The Second Circuit had held the provision unconstitutional.

Arguing as Deputy Solicitor General in support of the provision's constitutionality, Sri Srinivasan stressed that the Congressional requirement was "germane" to the government's goal in "partnering" with private organizations.  Justice Scalia, in addition to finding the term "partnering" a "terrible verb," seemed to voice sentiments consistent with his previous conclusions in funding cases that the government can choose to spend its money as it wished. Interestingly, Justice Alito was more troubled, as he expressed in his first comment and question to the Deputy Solicitor General:

JUSTICE ALITO: I'm not aware of any case in which this Court has held that it is permissible for Congress to condition Federal funding on the recipient's expression of agreement with ideas with which the recipient disagrees. I'm not aware of any case in which that kind of compelled speech has been permitted.  And I would be interested in -- and it seems to me like quite a -- a dangerous proposition. I would be interested in whatever limitations you think there might be on that rule, which seems to be the general rule that you're advocating. Other than the requirement of germaneness, is there anything else.

 Alito soon thereafter posed an example mentioned in an amicus brief about the ability of government funding schools, and again, Srinivasan repeated the requirement of "germaneness."  Later, Alito mentioned another example, mixing advocacy of guns and receiving health care, and Srinivasan again answered similarly.

Justice Ginsburg's concerns were similar, with an addition of the question of the recipients as foreign NGOs as a distinguishing feature from precedent as well as a practical issue. 

David Bowker, arguing for Alliance for Open Society and other organizations, attempted to distinguish a funding criteria from mandated speech once the fnding decision had been made, although this led into a discussion of viewpoint discrimination rather than compelled speech.  Later, Bowker brought it back to the distinction based upon Rust v. Sullivan, in  a colloquy with Justice Sotomayor:

MR. BOWKER: And what Rust says, and I – I think we fall back on Rust, which we think is just on all fours with where we are here, and that is what the government cannot do -- and I think this answers your question -- is outside the government program the government cannot control private speech. And it was critical in that case -- Justice Rehnquist, at pages 196 and 197, said, "The doctors there and the public health organizations there are free to engage in their own private speech and their own activities, and they are not required to endorse any viewpoint they don't, in fact, hold." And here -­

It was not until the Government's rebutal that one of the oddest features of the statute was raised, when Sotomayor stated,

JUSTICE SOTOMAYOR: I would have less problem accepting your message if there weren't four major organizations who were exempted from the policy requirement . . .

There seems to be a bit of selection on the government in terms of who it wants to work with. It would seem to me that if you really wanted to protect the U.S., you wouldn't exempt anybody from this.

In his last moments of argument, Srinivasan, responding to Justice Ginsburg, argued that the exemptions made "good sense" given that three of the four have members that are sovereign entities.  Unfortunately, the rationale supporting that fourth entity was not explored.

The hypotheticals and examples raised by the Justices in oral argument showed some concern about just how far Congress could extend a provision similar to the one about prostitution in the Leadership Act.  The distinction between funding and compelled speech doctrines was often obscured, making the outcome uncertain.  More certain is that Justice Kagan's perspective will be sorely missed.

RR
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April 22, 2013 in First Amendment, Foreign Affairs, Gender, International, Medical Decisions, Oral Argument Analysis, Sexuality, Speech, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, April 18, 2013

Daily Read: Spindelman on Carpenter on Lawrence

Integral to the same-sex marriage cases of Perry and Windsor argued before the Court last month is the 2003 case of Lawrence v. Texas.  Although the Court's opinion specifically excluded marriage in its caveat paragraph, the declaration that sodomy laws were unconstitutional under the Due Process Clause is generally considered a linchpin of recognizing any constitutional right to same-sex marriage under the Equal Protection Clause. 

Spindelman_marcProfessor Marc Spindelman (pictured) reviews Professor Dale Carpenter's book Flagrant Conduct: The Story of Lawrence v. Texas in a trenchant essay entitled Tyrone Gardner's Lawrence v. Texas appearing in Michigan Law Review.  Spindelman acknowledges the contribution of the book even as he uses it as a springboard to reach different conclusions about the potential of the case to achieve equality or civil rights.  Spindelman focuses on Tyrone Gardner, who along with John Geddes Lawrence was arrested for sodomy, as a lens for exploring the reach of Lawrence v. Texas.  

Refering to Gardner, Spindeleman asks, "How could Lawrence v. Texas, this great victory for lesbian and gay civil rights, have done and meant so very little to the life of one of the two men most central to it?"  Spindelman's answers explore the status-quo bias and moral conservatism of Lawrence, connecting the case to affirmative action decisions as well as to the "Obamacare" case, Nat’l Fed’n of Indep. Bus. v. Sebelius.

Every ConLawProf teaching Lawrence v. Texas would do well to read Spindelman's essay. 

RR

April 18, 2013 in Books, Due Process (Substantive), Equal Protection, Gender, History, Race, Scholarship, Sexual Orientation, Sexuality, Supreme Court (US), Teaching Tips, Theory | Permalink | Comments (0) | TrackBack (0)

Monday, April 8, 2013

Daily Read: Linda Greenhouse on Federalism and Same-Sex Marriage

In her column in the NYT last week, Linda Greenhouse wonders whether the federalism argument in the challenge to DOMA in United States v. Windsor is a "Trojan horse." 

Greenhouse has this reminder about federalism and family law:

There is much that’s questionable about this assertion of implicitly boundless state authority over family affairs. A famous pair of Supreme Court decisions from the 1920s armed parents with rights under the Due Process Clause to educate their children as they see fit, in resistance to state laws. Pierce v. Society of Sisters gave parents the right to choose private or religious schools despite an Oregon law that required public school education for all. Meyer v. Nebraska struck down a state law that barred the teaching of modern foreign language (the law’s post-World War I target was German.)

Nor is this ancient history. In 2000, the court struck down a state law in Washington that gave grandparents the right to visit their grandchildren over the parents’ objection. Justice O’Connor wrote the court’s opinion, Troxel v. Granville, which was joined by Chief Justice Rehnquist.

800px-Troi
Moreover, she extends the argument outside marriage and family law:

Substitute “marriage” for “criminal procedure” and you time-travel into last week’s argument. But you will listen in vain for the voice of Justice William O. Douglas, who brushed away concerns about what he dismissively called “this federalism” to ask: “Has any member of this court come out and said in so many terms it’s the constitutional right of a state to provide a system whereby people get unfair trials?”

As usual, Linda Greenhouse is worth a read, for ConLaw Profs and ConLaw students.

RR
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April 8, 2013 in Criminal Procedure, Current Affairs, Due Process (Substantive), Equal Protection, Federalism, Fifth Amendment, Fourteenth Amendment, Fundamental Rights, Gender, Interpretation, Oral Argument Analysis, Sexual Orientation, Sexuality, Sixth Amendment, Supreme Court (US), Theory | Permalink | Comments (2) | TrackBack (0)

Sunday, April 7, 2013

Daily Read: Justice Scalia on His Childhood

New York Magazine, in a feature "Childhood in New York" includes Antonin Scalia, now a United States Supreme Court Justice.

Scalia, born in 1936, has this to say about his school days in Elmhurst, Queens:

The teacher . . . was a lady named Consuela Goins, and she was a wonderful teacher. Every cloud has a silver lining, and one of the benefits of the exclusion of women from most professions was that we had wonderful teachers, especially the women who today would probably be CEOs.

The school was a very mixed group of people. There are no blacks in the class, and there really weren’t any in our neighborhood, but other than that it was, my goodness, polyglot . . .

 

451px-Albert_Anker_-_Schulknabe

 

RR
[image: Albert Anker, Schoolboy, circa 1881 via]

April 7, 2013 in Gender, Race, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, March 28, 2013

Daily Read: Hutchinson on Political Power and Same-Sex Marriage

HutchinsonIn the oral argument for United States v. Windsor challenging the constitutionality of the Defense of Marriage Act, DOMA, Chief Justice Roberts expressed skepticism that gays and lesbians were politically powerless, announcing to Roberta Kaplan, representing Edith Windsor, "As far as I can tell, political figures are falling over themselves to endorse your side of the case."

ConLawProf Darren Hutchinson (pictured) provides an indepth examination, context, and prescient critique of Roberts' remark in his new article, Not Without Political Power': Gays and Lesbians, Equal Protection, and the Suspect Class Doctrine, available in draft on ssrn.  Hutchinson argues that the political powerlessness factor used to evaluate claims for heightened scrutiny under equal protection doctrine is "especially undertheorized and contradictory." 

Hutchinson's article is a tour de force of precedent deploying rhetoric of political powerlessness.  Of course, Hutchinson highlights Justice Scalia's well-known dissent in Romer v. Evans, the Colorado Amendment 2 case, noting that not only is it based on stereotypes but it "sounds exactly like a political document against gay and lesbian rights."  But Hutchinson does suggest that there is indeed a role for politics, however at a much more sophisticated level.  Rather than jettison any inquiry into political powerlessness as some scholars have argued, Hutchinson contends that a much more robust understanding of politics is necessary.

Ultimately, Hutchinson concludes that the present scholarly and judicial discourse

fails adequately to discuss the multiple factors that cause political vulnerability among gays and lesbians. While some gays and lesbians possess power, most of them do not. Poverty, gender, race, geography, and disability influence the ability of gays and lesbians to exercise political power.

Instead, he suggests that political science scholarship inform legal scholarship and judicial opinions, and that antisubordination legal scholarship inform wider discussions of equal protection.  Certainly, Hutchinson's article should inform anyone considering political powerlessness in the context of same-sex marriage and equal protection.

RR

March 28, 2013 in Current Affairs, Equal Protection, Family, Fifth Amendment, Fourteenth Amendment, Gender, Interpretation, Profiles in Con Law Teaching, Reconstruction Era Amendments, Scholarship, Sexual Orientation, Sexuality, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 27, 2013

Daily Read: Same-Sex Marriage and Supreme Court Analysis

What should the Supreme Court do in the Prop 8 (argued yesterday) and DOMA [update: argued today] cases?

Be clear!

464px-Lesser_Ury_Leser_mit_LupeThis is from the essay Toward a more perfect analysis, published in the SCOTUSBlog same-sex marriage sympoisum in September 2012:

The suggestions of clearly articulated standards and rigorous analysis are not simply the fantasies of a law professor.  While Supreme Court opinions need not be constitutional law examination answers, neither should they be confusing, or marred by sarcasm or sentimentality.  Students studying law should be exposed to more Supreme Court opinions demonstrating trenchant analysis rather than rhetorical politics.

Clearly articulated standards might also allow the lower federal courts as well as the state courts to engage in their own rigorous analysis rather than attempt to discern the correct standard from Supreme Court precedents that are unclear, internally inconsistent, or point in several directions.  This is not to say that the same-sex marriage issue should have been easily resolved by lower courts or that the applications of the standard are not difficult and value-laden.  However, the grappling of the lower courts for several years now regarding the actual holding of Romer v. Evans, as well as Loving v. Virginia, could have been avoided.

Regarding the suggested holdings in the Proposition 8 and DOMA cases, the Supreme Court’s clear conclusion that sexuality merits intermediate scrutiny review, like gender, would disentangle the equal protection doctrine from the animus inquiry.  While certainly animus can be operative, the inquisition into intent invites protestations of moral belief or religious conviction.  The false opposition between equality and morals needs to be abandoned.  Additionally, the linking of sexual orientation and gender as quasi-suspect should lead courts to find classifications based upon gender identity, transgender identity, or gender nonconformity as similarly subject to intermediate scrutiny review. Additionally, the Supreme Court’s definitive holding that marriage is a fundamental right meriting strict scrutiny review would extricate the issues from the federalism quagmire.

RR
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March 27, 2013 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fourteenth Amendment, Gender, Interpretation | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 26, 2013

Hollingsworth v. Perry, California's Prop 8 Case Oral Arguments in the United States Supreme Court

The first of the two closely-watched same sex marriage cases to be argued before the United States this morning prompted much tweeting and predictions, as well as the promised early release of the audio by the Supreme Court itself.

Supreme_Court_of_the_United_StatesAudio here:

 

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As the oral arguments today made clear, at issue before the Court today in Hollingsworth v. Perry is the constitutionality of California's Proposition 8, held unconstitutional by a divided panel of the Ninth Circuit in Perry v. Brown.

 

 The Standing Issue:

The first question during oral argument was from Chief Justice Roberts and directed the attention of Hollingsworth's counsel, Charles Cooper, to the "jurisdictional" issue - - - the question of whether Hollingsworth has standing.  Recall that the original challenge to Proposition 8 named Governor Schwarzenegger, and later substituted Governor Brown, as defendants, but both governors and the State of California refused to defend the constitutionality of the voter initiative.  Recall also that the California Supreme Court had answered a certified query about the interests of proponents of a Proposition under California law, but today's the questions from the bench stressed Article III of the United States Constitution.

Roberts' query was repeated to Theodore Olsen, arguing for the challengers to Proposition 8, and to Solicitor General Verrilli, who noted that the United States, as amicus, did not have a "formal position" on standing, but essentially echoed Justice Ginsburg's first question to Cooper, regarding whether the proponents of Proposition 8 had any "propriety interest" in the law distinct from other California citizens once the law had been passed.

On the Merits:

A central query on the merits is the level of scrutiny under equal protection doctrine that should be applied.  Justice Kennedy asked Cooper whether it could be treated as a gender classification and stated "It's a difficult question that I've been trying to wrestle with it."  Yet Cooper's argument in many ways deflects the level of scrutiny inquiry and Justice Kagan expressed it thusly:

Mr. Cooper, could I just understand your argument. In reading the briefs, it seems as though your principal argument is that same-sex and opposite -- opposite-sex couples are not similarly situated because opposite-sex couples can procreate, same-sex couples cannot, and the State's principal interest in marriage is in regulating procreation. Is that basically correct?

Mr. Cooper agreed, and continued his argument, although Justice Scalia later tried to assist him:

JUSTICE SCALIA: Mr. Cooper, let me -- let  me give you one -- one concrete thing. I don't know why  you don't mention some concrete things. If you redefine  marriage to include same-sex couples, you must -- you  must permit adoption by same-sex couples, and there's -­  there's considerable disagreement among -- among  sociologists as to what the consequences of raising a  child in a -- in a single-sex family, whether that is  harmful to the child or not. Some States do not -- do  not permit adoption by same-sex couples for that reason.  

JUSTICE GINSBURG: California -- no,  California does.  

JUSTICE SCALIA: I don't think we know the  answer to that. Do you know the answer to that, whether  it -- whether it harms or helps the child?

But given that Justice Kennedy is widely viewed as the "swing vote," his comments deserve special attention.  During Cooper's argument, Kennedy focused on the children of same-sex couples in California:

JUSTICE KENNEDY: I -- I think there's -­ there's substantial -- that there's substance to the point that sociological information is new. We have five years of information to weigh against 2,000 years of history or more. On the other hand, there is an immediate legal injury or legal -- what could be a legal injury, and that's the voice of these children. There are some 40,000 children in California, according to the Red Brief, that live with same-sex parents, and they want their parents to have full recognition and full status. The voice of those children is important in this case, don't you think? 

But at other times, Kennedy expressed other concerns.  During Theordore Olsen's argument, Kennedy stated

JUSTICE KENNEDY: The problem -- the problem  with the case is that you're really asking, particularly because of the sociological evidence you cite, for us to go into uncharted waters, and you can play with that  metaphor, there's a wonderful destination, it is a cliff. Whatever that was.

And soon thereafter, in perhaps what could be a possible avoidance of all the issues,

JUSTICE KENNEDY: But you're -- you're doing  so in a -- in a case where the opinion is very narrow.  Basically that once the State goes halfway, it has to go  all the way or 70 percent of the way, and you're doing  so in a case where there's a substantial question on -­ on standing. I just wonder if -- if the case was  properly granted. 

MR. OLSON: Oh, the case was certainly  properly granted, Your Honor. I mean, there was a full  trial of all of these issues. There was a 12-day trial,  the judge insisted on evidence on all of these  questions. This -- this is a -­ 

JUSTICE KENNEDY: But that's not the issue  the Ninth Circuit decided.   

Could the Supreme Court merely declare that its grant of certiorari was "improvidently granted."  It certainly wouldn't be the first time (or second) in very recent history.  But in such a high profile case, it might further erode respect for the Court.

RR

 

March 26, 2013 in Courts and Judging, Equal Protection, Family, Fourteenth Amendment, Gender, Opinion Analysis, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, March 25, 2013

Daily Read: Not The Marrying Kind by Nicola Barker

9781137348036BarkerThe critique of marriage as a legal institution may seem a bit churlish as the same-sex marriage cases go to the United States Supreme Court this week.  It may seem as if there is universal agreement that marriage is "good" and the only question is whether governments can exclude same-sex couples from this "good."

Yet there is certainly a different way to conceptualize the issue.  In Not the Marrying Kind, U.K. Law Professor Nicola Barker engages the issues from several perspectives.  Importantly, her discussions do not portray the lesbian or larger LGBT communities as monolithically desiring marriage, but rather as critically engaged in questions of formal equality. She is scrupulous about presenting the complexities of opinions, theories, and strategies across several continents. Barker's book is a treat even readers who have been following these developments for years or are suffering from same-sex marriage fatigue.

I review Barker's book, as well as several other books on same-sex and opposite-sex marriage in an essay "Is Marriage Good for Women?" in this month's Women's Review of Books.

Barker's book is the best of the lot and essential reading for anyone seriously engaged in thinking about same-sex marriage.

RR

March 25, 2013 in Books, Comparative Constitutionalism, Current Affairs, Family, Gender, Scholarship, Sexual Orientation, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Thursday, March 21, 2013

Daily Read: US v. Windsor, the DOMA Case, Amicus Brief Cato Institute and Constitutional Accountability Center

Fourth in a Series: Guest Post by Allison Reddy, City University of New York (CUNY) School of Law, class of 2014

CATOThe brief of amici curiae of Cato Institute and Constitutional Accountability Center supports the position of Edith Windsor and argues for affirming the Second Circuit opinion. The Cato Institute is a think tank dedicated to public policy research furthering “the principles of individual liberty, limited government, free markets and peace.”  The challenge to DOMA is consistent with CATO's philosophy of limited governmental interference in issues of personal freedom, especially on the Dtmcaclogopart of the federal government.  The Constitutional Accountability Center, also a think tank, is dedicated to "fulfilling the progressive promise of our Constitution’s text and history."  While the two organizations might differ on controversial cases such as Citizens United, here the organizations agree that DOMA should be held unconstitutional.

Interestingly, the brief does not use the umbrella argument technique and instead jumps right into  the arguments, first discussing the equal protection guarantee embodied in the Fifth Amendment. According to their argument, the Constitution protects individuals, not groups, from “lawless action by the government.” The amicus continues to quote Justice Kennedy’s concurring opinion in JEB v. Alabama, which focused on the fact that individuality rises above association with a particular class. Therefore, any law designed to make individuals inferior under the law because of membership in a class is inherently odious. The argument progresses to discuss the plain meaning of the equal protection clause, which requires “equality under the law and equality of rights for all persons.” Citing the Civil Rights Cases, Yick Wo, and Justice Harlan’s dissent in Plessy v. Ferguson, the brief makes a forceful case for the prohibition of class legislation. Framing DOMA as discrimination against gays and lesbians and denial of their right to “ordinary civic life in a free society” (Romer), the principles and case law undergirding equal protection require that DOMA be overturned.

The brief discusses the history of heightened scrutiny, both strict and intermediate. It supports the Second Circuit’s conclusion that intermediate scrutiny is appropriate. It argues, however, that the Court need not even reach a heightened scrutiny analysis, because DOMA fails even the most deferential rational basis review. However, without acknowledging the perhaps more “searching” scrutiny these cases apply, the brief uses Romer, Moreno, and Cleburne to support its conclusion. It does note that rational basis review, although deferential, “has never entailed judicial abdication in the face of arbitrary, invidious discrimination inconsistent with the equal protection guarantee,” citing Nat’l Fed’n of Independent Business v. Sebelius in support of this proposition. Accordingly, the Court should not abdicate its responsibility to protect gays and lesbians from DOMA’s discriminatory effects.

The brief further argues that because DOMA discriminates against gays in lesbians in almost every aspect of their lives, it violates the basic guarantee of equal protection under the law. DOMA was not a rational solution to a legitimate federal problem because it was obviously enacted in the spirit of animosity towards gays and lesbians, aiming to make them unequal to everyone else. Quoting the legislative history, the brief points out that “federal legislators sought to ‘express their disapprobation through the law,’ 142 Cong. Rec. 17,089 (1996), asserting that same-sex couples were ‘immoral, depraved,’ ‘unnatural,’ ‘based on perversion,’ and ‘an attack on God’s principles.’ Id. at 16,972, 17,074, 17, 082.” The brief goes on to eviscerate the rational bases proffered by BLAG in much the same manner as the Southern District, First Circuit, and Second Circuit.

This amicus brief reads much more forcefully than the Government’s brief. The way that this amicus brief essentially frames Romer, Cleburne, and Moreno as ordinary rational basis cases mirrors BLAG’s framing of those cases—except to support the opposite argument. At first blush, not acknowledging the more “searching” standard in these cases seemed glaring; however, this was obviously an intentional choice to construe these cases as minimally scrutinizing to support a finding that DOMA would fail even the most permissive review.

Moreover, by invoking the plain meaning of equal protection, this brief dispensed with the legal formalism. It argued that couching the arguments over DOMA in the language of federalism is a disingenuous approach to the issue and urges the Court reject BLAG's construction and confront DOMA in a forthright manner.

[posted and edited by RR]

March 21, 2013 in Current Affairs, Equal Protection, Family, Fifth Amendment, Gender, Sexual Orientation, Supreme Court (US) | Permalink | Comments (1) | TrackBack (0)

Wednesday, March 20, 2013

Daily Read: US v. Windsor, the DOMA Case, Amicus Brief of National Association of Evangelicals

Third in a Series: Guest Post by Versely Rosales, City University of New York (CUNY) School of Law, class of 2014

The brief submitted by National Association of Evangelicals; The Ethics  & Religious Liberty Commission of the Southern Baptist Convention; The Church of Jesus Christ of Latter-Day Saints; The Lutheran Church-Missouri Synod; The Romanian-American Evangelical Alliance of North America; and Truth in Action Ministries supports the position of BLAG arguing for the constitutionality of DOMA. 

Churchfaith
The brief argues that rational basis review is the proper standard for evaluating legislation, like DOMA, that implicates questions of values, culture, and policy. The brief also argues that “moral and religious views voiced in support of DOMA do not detract from its validity.”

The rational basis argument:

This amicus brief first argues that rational basis governs because what is at issue in DOMA “is not a discrimination against a discrete and insular minority.”  Instead, the issue is a “profound culture debate over the nature and meaning of marriage.”  Further, because “homosexuals” have political power, they do not need extraordinary judicial protection from majoritarian interests. Thus, they can rely on the democratic political processes to engage in a debate over values, morals, judgments, and culture. Therefore, rational basis review is the only standard that allows for spirited democratic debate over the different visions of marriage that should prevail in the federal government. By applying anything other than rational basis, the Court would deprive the public of this debate. In particular, it would deny faith communities, who have a “long experience in these matters” and “unique perspectives,” to be heard by democratic decision makers.

Thus, the brief contends that the Second Circuit’s conclusion that Section 3 of DOMA is unconstitutional stands on a “rickety foundation.”  The Second Circuit is faulted for “creat[ing] the first new protected class in 35 years,” and being contrary to every federal court of appeals that has addressed the question.  Further, this amicus brief notes several other reasons why heightened scrutiny is “plainly improper in this case.” First, heightened-scrutiny jurisprudence contains a strong presumption against creating new suspect classes as courts should be very reluctant to closely scrutinize legislative choices. Secondly, the Constitution presumes that unjust discrimination will be remedied through the ordinary democratic process. Thirdly, the Supreme Court’s refusal to recognize any new suspect classes confirms the necessity of a very cautious approach into sensitive areas.  

The amicus brief of these religious organizations criticizes the Second Circuit opinion for failing to recognize that rational basis review is the proper standard of review for preserving the primacy of the democratic process in cases turning on fundamental issues of public policy, culture, and morality. DOMA is argued to be within this category because it has become monumental cultural conflict between two major visions of marriage: traditional marriage which is centered on procreating and raising children; and the more recent, genderless, adult-orientated notion where procreation and childrearing are not central to marriage’s meaning. The traditional marriage concept has deep roots and provides a mechanism for coping with the reality that sex between men and women generally results in pregnancy and childbirth. And, whether proven or not, it is reasonable to accept that children born from opposite-sex married relationships will benefit by being raised by two parents within long-term relationships. In addition, lawmakers cannot and should not rely on social science scholars on the effects of sexual minorities parenting children because, in part, such opinions are inherently tentative and often laden with value-based assumptions.  Thus, lawmakers should be allowed to use their judgments and own experience, which have led them to believe that traditional marriage and family structure deserve distinctive legal protections.

The amicus brief also points out while the Court has never adopted “the genderless, adult-centered definition of marriage,” it has “long endorsed the strong legislative preference for man-woman marriage as the foundation of our society.” Given this historical preference, the Court should construe DOMA as a rational preference for the tried and familiar over the untried and novel.

The moral and religious views argument:

The second main argument of this amicus brief contends “moral and religious views voiced in support of DOMA do not detract from its validity.”  Congress identified “defending traditional notions of morality” as one of the four “governmental interests” for the enactment of DOMA. The brief argues that Congress recognized that the issue of marriage has moral or religious aspects for many Americans and that cannot be divorced from the practicalities. Lawmakers have the right to protect this valued moral norm, and when they do so, it should not be labeled as invalid just because it happens to coincide with the tenets of some - - -or all - - - religions. To declare DOMA void merely because it adheres to traditional moral and religious belief would fly in the face of this Court’s ruling that the Constitution does not allow the government to treat religion and those who practice or teach it as being subversive to American ideals and therefore subject them to unique disabilities. “By scrutinizing a law reflecting, in part, religious values more severely than others, courts would effectively target such beliefs or religious support for unusual burdens or penalties.”

Interestingly, the brief ultimately argues that to subject DOMA to heightened scrutiny simply because of its “affiliation with traditional morality would raise First Amendment concerns.”

Contribution of the Brief:

This amicus brief supports the position of BLAG that DOMA is unconstitutional.  But although BLAG agrees that traditional marriage coincides with religious sections of the citizenry, it does not emphasize the moral aspect of DOMA in its brief.

The Government brief does not agree with the assertion that what is at issue is a cultural debate. The Government clearly argues in its brief that DOMA is based on discrimination and it affects the distribution of benefits to a sub-section of society. The Government also disagrees with the Amicus brief’s most basic contention: Homosexuals are not a discrete and insular minority deserving of heightened scrutiny.

The argument that the First Amendment is relevant is unique; it is not shared by BLAG or the Government.

[posted and edited by RR]
[image via]

 

March 20, 2013 in Current Affairs, Equal Protection, Family, Fifth Amendment, First Amendment, Free Exercise Clause, Fundamental Rights, Gender, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, March 18, 2013

Daily Read: US v. Windsor, the DOMA Case, Amicus Brief of Senators Hatch et. al. in Support of BLAG

First in a Series: Guest Post by Meghan McLoughlin, City University of New York (CUNY) School of Law, class of 2014

Brief on the merits of the Amici Curiae United States Senators Orrin G. Hatch (pictured), Saxby Chambliss, Dan Coats, Thad Cochran, Mike Crapo, Charles Grassley, Lindsey Graham, Mitch McConnell, Richard Shelby, and Roger Wicker in support of respondent the Bipartisan Legal Advisory Group of the U.S. House of Representatives.   

399px-Orrin_Hatch,_official_portrait,_112th_CongressThe Amici were all sitting United States Senators who served in the 104th Congress House or Senate and voted for passage of the Defense of Marriage Act (“DOMA”). Their interest in writing this brief was to inform the Court of the important interests that DOMA was enacted to serve. Therefore, this brief does not explore the equal protection levels of scrutiny and their applicability to DOMA or discuss every interest in enacting DOMA, as the Bipartisan Legal Advisory Group (“BLAG”) did in their brief. Rather, the The Amici’s argument focuses on and expounds specifically federal interests that were considered and explained throughout DOMA’s legislative history, but which the Amici feel were ignored, misunderstood, or summarily dismissed in the courts below.

First, the Amici contend alongside BLAG that pre-DOMA law did not recognize same-sex marriage, and that DOMA merely reaffirmed the existing federal definition. Like BLAG, the brief cites to other federal statutes and benefits describing spouses as husband and wife, and explains that at the time federal benefit statutes were enacted, no state recognized same-sex marriages. Both briefs state that DOMA was a response to the Hawaii case, Baehr v. Lewin,  but  the Amici go as far to describe Congress’s view that Baehr was “part of an orchestrated legal assault being waged against traditional heterosexual marriage.” [Brief, pg. 2]

Second, the Amici echoed BLAG’s asserted interest of uniformity and certainty in the application of federal law. In addition to BLAG’s claim that a federal definition of marriage is necessary to ensure that couples in different states do not have different eligibility to receive Federal benefits, the Amici also explain that DOMA was enacted to avoid state by state and statute by statute litigation over whether a couple who had married in a state that recognized same-sex marriage would be “married” if they moved to another state. The outcome of this type of litigation would largely depend on whether a state had a strong public policy against same-sex marriage, which would vary state to state. DOMA was enacted to prevent this litigation, which would have varying and inconsistent results. The Amici further contend that there is nothing suspicious or novel about Congress preferring this uniformity over deference to state law – especially when Congress is confronted by an effort to change the definition of marriage contrary to history and tradition.

Third, similarly to BLAG, the Amici reject the argument that DOMA interferes with the autonomy of states to define marriage and claim that Section 3 of DOMA protects the ability of states to preserve traditional marriage. Like BLAG, the Amici reference Section 2 of DOMA as preserving and protecting the autonomy of each individual state. In addition, the Amici claim that Section 3 of DOMA preserves the traditional definition of marriage by removing the incentive that might otherwise encourage efforts to change state law to recognize same-sex marriage. The Amici state that if recognizing same-sex marriage would allow same-sex couples to obtain federal benefits, those seeking recognition by the courts would have a powerful weapon, especially in the cases of sympathetic plaintiffs.

Finally, the Amici devote the last section of their brief to the claim that support for traditional marriage is not unconstitutional animus. Although BLAG also contends that DOMA is not motivated by animus, the Amici specifically claim that the Court’s animus jurisprudence does not support invalidating an otherwise constitutional statute based on the subjective motivations of individual legislators. Thus, where, as here, there is sufficient legislative history to indicate the law is rationally related to some legitimate governmental interest, the law cannot be invalidated by the improper motives of some legislators. Moreover, the Amici argue, there is no basis to equate support for the traditional definition of marriage with unconstitutional animus. They contend it is not irrational or bigoted to oppose the redefinition of marriage that is unknown to history or tradition.

The Amici did not present any entirely new interests or arguments in support of DOMA, but rather further explained and detailed interests that have already been discussed in the BLAG brief and in the court decisions below. It was an opportunity for the Amici to present more rationales connecting the asserted interests to DOMA but did not necessarily help  in understanding BLAG’s arguments. In addition, the Amici characterized the potential for recognition of same-sex marriage as an orchestrated conspiracy to undermine their view of marriage, which may not have been appropriate for a party’s brief given its strong language.

[posted and edited by RR]


March 18, 2013 in Equal Protection, Family, Fifth Amendment, Gender, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Sunday, March 17, 2013

Weekly Read: US v. Windsor, the DOMA Case, Amicus Briefs

With the oral argument in United States v. Windsor testing the constitutionality of DOMA set for March 27 (the day after the related Prop 8 case, Hollingsworth v. Perry), the amicus briefs have been piling up (and one more, from General Edwin Meese III and John Ashcroft, will apparently be added). 

Recall that in United States v. Windsor, the constitutionality of DOMA is being argued by BLAG, the Bipartisan Legal Advisory Group of the U.S. House of Representatives, while Windsor (as well as the United States Government) argues that DOMA is unconstitutional.  This unusual configuration raises some standing issues, but the merits briefs focus on the constitutionality of DOMA under the equal protection component of the Fifth Amendment.

800px-Stack_of_Copy_PaperIn case you haven't had a chance to read each one of the amicus briefs, this week we highlight four briefs, in guest posts authored by CUNY School of Law students in Professor Andrea McArdle's "Judicial Writing Seminar."  The student authors will briefly outline the arguments and then discuss what, if anything, the particular amicus brief adds to the parties' briefs.

Here's the line-up:

Meghan McLoughlin discusses the brief of Senators Orrin G. Hatch et. al in support of respondent BLAG.

Anetta Sookhdeo discusses the brief of the Scholars of the Constitutional Rights of Children in support of Windsor.

Versely Rosales discusses the brief of the National Association of Evangelicals; The Ethics  & Religious Liberty Commission of the Southern Baptist Convention; The Church of Jesus Christ of Latter-Day Saints; The Lutheran Church-Missouri Synod; The Romanian-American Evangelical Alliance of North America; and Truth in Action Ministries in support of BLAG.

Allison Reddy discusses the brief of the CATO Institute and the Constitutional Accountability Center in support of Windsor.

RR
[image via]

 

March 17, 2013 in Equal Protection, Family, Fifth Amendment, Gender, Sexual Orientation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, March 11, 2013

Daily Read: Symposium Issue on Perry from NYU Review of Law & Social Change

Debuting on line today is volume 37:1 of the NYU Review of Law & Social Change, a symposium issue dedicated to Perry v. Brown, now Hollingsworth v. Perry that is scheduled to be heard by the United States Supreme Court in 15 days.

According to the Introduction, the Symposium editors sought to present the issue as a "time capsule," filled with "leading and emerging voices in the LGBTQ movement" as well as other scholars, "reflecting on Perry before the Court has its final say, before anyone gets the benefit of 20/20 hindsight."  The comments were "first drafted before the Court had even granted certiorari" on the premise that Perry was already an important case.

The Symposium participants were asked to address three queries.  Here are the questions and the participants:

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The Symposium will also be available as a print issue, but meanwhile having its full contents available before the arguments makes it more valuable as a daily - - - or weekly - - - read.

RR

March 11, 2013 in Family, Fundamental Rights, Gender, Race, Scholarship, Sexual Orientation, Sexuality, Standing, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, March 8, 2013

Daily Read: Obama Signs VAWA

Apropos of International Women's Day today, President Obama's signing of the reauthorization of the Violence Against Women Act (VAWA) yesterday is the daily read, including the official remarks and the video below. 

 

 

As the President's remarks reflect, the version of VAWA that passed Congress is notable because it includes protections for Native Americans (expanding tribal jurisdiction), for undocumented persons, and for persons in same-sex relationships.

And they are also notable for his shout-out to one of my former students, Sharon Stapel, for her work.

RR
[video via]

March 8, 2013 in Congressional Authority, Family, Fourteenth Amendment, Gender, Race | Permalink | Comments (0) | TrackBack (0)

Thursday, March 7, 2013

Idaho District Judge Holds Portions of State's Abortion Law Unconstitutional

In the latest chapter of McCormack v. Hiedeman, District Judge Lynn Winmill issued a 42 page opinion (Memorandum Decision and Order) yesterday holding various provisions in Idaho's abortion law unconstitutional, including the 20 week pregnancy ban unconstitutional.

Agrippine_de_Claude_MellanRecall that the Ninth Circuit last year found that Idaho's prosecution of McCormack for "self-abortion" constituted an undue burden and was unconstitutional.  McCormack, who purchased abortion "medications" over the internet, was the subject of an excellent indepth article which we discussed here. At that time, it seemed as if the case was concluded.

However, Judge Winmill rejected the prosecutor's argument that the case was moot, noting that a party "cannot conjure up mootness by ceasing the challenged conduct only for practical or strategic reasons - - - such as avoiding litigation."  The judge further held that the prosecutor's promise not to prosecute would not bind his successors and that his subsequent offer of transactional immunity to McCormack was not timely or binding.  Further, the judge noted that pregnancy is "capable of repetition yet evading review."

Judge Winmill also held that the physician in the case had standing, including to assert his patients' constitutional claims.

On the merits, Judge Winmill held that the self-abortion provision is a substantial obstacle and therefore unconstitutional, adopting the Ninth Circuit's reasoning.

Judge Winmill also held unconstitutional the provisions imposing criminal liability on abortion providers who perform first trimester abortions outside a hospital or a properly staffed and equipped office or a clinic and requires that “physicians have made satisfactory arrangements” for emergency hospital care.  The judge accepted the physician's argument that the terms “properly” and “satisfactory” are unconstitutionally vague therefore placing an undue burden on women seeking first trimester abortions. There is some confusion in the judge's reliance on Gonzales v. Carhart in this passage, but the judge finds that the Idaho statute is not sufficiently specific.

Additionally, the judge found unconstitutional the Idaho provisions  banning abortions at twenty weeks in PUCPA, the Pain-Capable Unborn Child Protection Act.  He reasoned that PUCPA does not contain mention the health or safety of the pregnant woman, that its only purpose was to limit the available options for the woman, and that the legislature cannot place viability at a set point. 

Given this opinion, it is likely that McCormack v. Heidman will be returning to the Ninth Circuit.

RR
[image via]

March 7, 2013 in Abortion, Due Process (Substantive), Family, Fourteenth Amendment, Gender, Medical Decisions, Opinion Analysis, Reproductive Rights | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 5, 2013

Daily Read: Former Justice O'Connor on the Rachel Maddow Show

Today's "read" is the video of former Justice O'Connor on "The Interview" segment of the Rachel Maddow Show.   It raises ethics issues in an interesting way as well as gender in the Court and Bush v. Gore as not very "special" although also "important." 

  It starts at 5.35 below:

 

Visit NBCNews.com for breaking news, world news, and news about the economy

 

 

Update: more O'Connor here. And here.

RR

March 5, 2013 in Gender, History, Interpretation, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Monday, March 4, 2013

Daily Read: Toobin on Justice Ginsberg in New Yorker

Jeffrey Toobin's profile of Justice Ginsburg, entitled The Heavyweight, is behind a paywall at The New Yorker, but news outlets are already reporting some material, including Justice Ginsburg's plan not to retire this year (or next).

459px-Ruth_Bader_Ginsburg,_SCOTUS_photo_portrait
Toobin characterizes Ginsburg as "reserved, noting that there "is some irony in Ginsburg’s reputation for reserve, because she is, by far, the current Court’s most accomplished litigator. Before Chief Justice John G. Roberts, Jr., became a judge, he argued more cases than Ginsburg did before the Justices, but most of them were disputes of modest significance."

Worth a read - - - especially for those who like celebrity legal profiles.

RR

March 4, 2013 in Courts and Judging, Current Affairs, Gender, History, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)