Thursday, September 4, 2014
The Seventh Circuit heard oral arguments in Baskin v. Bogan and Wolf v. Walker just last week. Today, the court issued its unanimous opinion affirming the district court findings that the same-sex marriage bans in Indiana and Wisconsin are unconstitutional.
The Seventh Circuit panel enjoined the states from enforcing the laws and did not issue a stay.
Judge Richard Posner (pictured right) who is perhaps the most well-known judge not on the United States Supreme Court and who attracted attention with his comments at the oral argument, perhaps not surprisingly wrote the 40 page opinion.
Indiana and Wisconsin are among the shrinking majority of states that do not recognize the validity of same-sex marriages, whether contracted in these states or in states (or foreign countries) where they are lawful.
The panel's decision is based entirely on equal protection doctrine under the Fourteenth Amendment. Here's Judge Posner introducing the concept that
comes wrapped, in many of the decisions applying it, in a formidable doctrinal terminology—the terminology of rational basis, of strict, heightened, and intermediate scrutiny, of narrow tailoring, fundamental rights, and the rest. We’ll be invoking in places the conceptual apparatus that has grown up around this terminology, but our main focus will be on the states’ arguments, which are based largely on the assertion that banning same-sex marriage is justified by the state’s interest in channeling procreative sex into (necessarily heterosexual) marriage.
However, Judge Posner's analysis draws heavily on his work in law and economics, implying that cost-benefit analysis deserves more attention that the "conventional approach" - - - which "doesn’t purport to balance the costs and benefits of the challenged discriminatory law" - - - gives it. For Posner:
Our pair of cases is rich in detail but ultimately straight- forward to decide. The challenged laws discriminate against a minority defined by an immutable characteristic, and the only rationale that the states put forth with any conviction— that same-sex couples and their children don’t need marriage because same-sex couples can’t produce children, intended or unintended—is so full of holes that it cannot be taken seriously. To the extent that children are better off in families in which the parents are married, they are better off whether they are raised by their biological parents or by adoptive parents. The discrimination against same-sex couples is irrational, and therefore unconstitutional even if the discrimination is not subjected to heightened scrutiny, which is why we can largely elide the more complex analysis found in more closely balanced equal-protection cases.
Judges Williams and Hamilton apparently agreed.
If the cases go en banc or to the Supreme Court, it will be interesting to see if any of the law and economics rationales are prominent.
Monday, September 1, 2014
In her new book, Corruption from Harvard University Press, ConLawProf Zephyr Teachout argues that campaign finance reform is constitutional and that the anti-corruption principle is one that originalists should embrace rather than disparage.
When Louis XVI presented Benjamin Franklin with a snuff box encrusted with diamonds and inset with the King’s portrait, the gift troubled Americans: it threatened to “corrupt” Franklin by clouding his judgment or altering his attitude toward the French in subtle psychological ways. This broad understanding of political corruption—rooted in ideals of civic virtue—was a driving force at the Constitutional Convention.
For two centuries the framers’ ideas about corruption flourished in the courts, even in the absence of clear rules governing voters, civil officers, and elected officials. Should a law that was passed by a state legislature be overturned because half of its members were bribed? What kinds of lobbying activity were corrupt, and what kinds were legal? When does an implicit promise count as bribery? In the 1970s the U.S. Supreme Court began to narrow the definition of corruption, and the meaning has since changed dramatically. No case makes that clearer than Citizens United.
Teachout has argued her position in op-eds in the Washington Post and in Politico after the Court's decision last term in McCutcheon v. FEC, (more of our McCutcheon discussion is here, here, here, and here).
Additionally, Teachout - - - along with Tim Wu, also a law professor - - - is running for state wide office in New York. Teachout is running for Governor against the incumbent Andrew Cuomo and Wu is running for Lieutenant Governor in next week's primary election. (Teachout prevailed in lawsuits brought by the Cuomo campaign challenging her eligibility based on residency). Interestingly, the New York Times endorsed Wu, but did not endorse either Teachout or Cuomo in the Governor's race, citing Teachout's lack of demonstrated "breadth of interests and experience needed to govern a big and diverse state" and Cuomo's failure to keep his "most important promise" of addressing "corruption." The primary is September 9.
Wednesday, August 20, 2014
The University of the District of Columbia Law Review just issued its symposium edition on the right to counsel in civil cases, or Civil Gideon. The full list of articles and links to the full texts are here. John Pollock, staff attorney at the Public Justice Center in Baltimore and coordinator of the National Coalition for the Civil Right to Counsel, wrote the introduction, with a background on the Civil Gideon movement and updates on progress; a direct link to Pollock's article is here.
Wednesday, August 13, 2014
In his essay Justice Clarence Thomas's Korematsu Problem, forthcoming in Harvard Journal of Racial & Ethnic Justice and available on ssrn, ConLawProf Mark Kende suggests that Justice Thomas actually endorses one of the most reviled Supreme Court opinions, Korematsu v. United States (1944), in which the Court upheld the internment of citizens of Japanese ancestry even as it noted that race-based classifications deserved strict scrutiny.
Kende focuses on Thomas's dissents in Hamdi v. Rumsfeld (2004) and Johnson v. California (2005) to argue that Thomas's views are consistent with a Korematsu-approving jurisprudence in which government power to enact security concerns trumps color-blindness principles.
Worth a read as we consider executive power and questions of nationality and race in the news.
Tuesday, August 12, 2014
Kelly A. Behre's forthcoming article, Digging Beneath the Equality Language: The Influence of the Fathers’ Rights Movement on Intimate Partner Violence Public Policy Debates and Family Law Reform, 21 Wm. & Mary J. Women & L. (forthcoming 2014), available at SSRN, is the topic of my piece for JOTWELL: Things We Like Lots in the Equality section. I think that
Behre’s article is worth reading for its “deep dig” into the reality, rhetoric, and social science of “fathers’ rights.” Gender equality in family law remains worthy of our attention. But Behre’s article is also worth reading for its applicability to issues involving “reverse discrimination,” “color-blindness,” or formal equality, in which similar empirical underpinnings promote continued subordination. Digging beneath the equality rhetoric does not only unearth profound differences in the meanings of equality, it may also surface a dirty study.
If nothing else, Behre's careful tracing of incorrect citations and descriptions will make one want to double-check those sources in one's latest writing.
Monday, August 11, 2014
Inspired by the successful - - - and fun! - - - Feminist Judgments in the UK, the American version of Feminist Judgments is seeking contributors. [update: And be sure to check out the terrific Canadian version here, which was the inspiration for the UK version].
Here's the call:
The U.S. Feminist Judgments Project seeks contributors of revised opinions and commentary for an edited collection entitled Feminist Judgments: Rewritten Opinions of the United States Supreme Court. This edited volume is a collaborative project among feminist law professors and others to rewrite, from a feminist perspective, key Supreme Court decisions relevant to gender issues. Editors Kathy Stanchi, Linda Berger and Bridget Crawford seek prospective authors for 20 to 25 rewritten Supreme Court opinions covering a range of topics including reproductive rights, equal protection, the state’s use of criminal power, privacy, the family, women’s political participation, Title IX, employment discrimination and substantive due process.
The editors also seek authors for commentaries of 1,500 to 2,500 words to put into context each of the rewritten cases.
The U.S. Feminist Judgments project was inspired by the successful collection and publication in Britain of FeministJudgments: From Theory to Practice, edited by Rosemary Hunter, Clare McGlynn, and Erika Rackley. This volume, which included feminist versions of twenty-three key British decisions from the Court of Appeal and House of Lords, was published in 2010 and has been very well received.
Like the sister project in Britain, the U.S. Feminist Judgments Project endeavors to pioneer “a new form of critical socio-legal scholarship” that illustrates how cases could have been decided differently had afeminist method been employed. We believe that U.S. Supreme Court law is ripe for this kind of scholarly treatment.
Those who are interested in rewriting an opinion or providing the commentary on one of the rewritten opinions should fill out an application here:
Applicants may indicate their preferences among the list of cases. Applicants also may suggest other cases for rewriting. The tentative cases were chosen with the input and advice of an Advisory Panel of distinguished U.S. scholars including Kathryn Abrams, Katharine Bartlett, Devon Carbado, Mary Anne Case, Erwin Chemerinsky, April Cherry, Kimberlé Crenshaw, Martha Fineman, Margaret Johnson, Sonia Katyal, Nancy Leong, Catharine MacKinnon, Rachel Moran, Melissa Murray, Angela Onwuachi-Willig, Nancy Polikoff, Dorothy Roberts, Dan Rodriguez, Susan Ross, Vicki Schultz, Dean Spade, Robin West, and Verna Williams.
Here's the call for what looks like an important conference:
Call for Papers
The staff of the Lincoln Memorial University Law Review invites submissions related to its Spring 2015 Symposium entitled “The Snowden Effect: The Impact of Spilling National Secrets.” The Symposium will be held on Friday, January 30, 2015 at the LMU-Duncan School of Law in downtown Knoxville, Tennessee.
The LMU Law Review’s goal for the Symposium is to facilitate discussion among scholars and practitioners regarding the implications of the national security disclosures by former government contractor Edward Snowden. Topics will include, but not necessarily be limited to: the protection of government sources and methods; Fourth Amendment and privacy issues; the effect of the Snowden disclosures and other such security leaks on U.S. foreign policy, particularly or relationships with our allies; surveillance state concerns; and the classification of government material.
The LMU Law Review will publish a dedicated symposium issue related to the Symposium’s theme. The Law Review welcomes submissions for this specially-themed issue, which will be comprised of several articles, notes, and essays bringing together leading experts on the theory, application, and scholarly analysis of these contemporary national security issues.
To be considered for publication in the symposium issue, please submit by October 15, 2014: (1) an abstract or a draft article; and (2) a curriculum vitae (CV). Participation in the Symposium is not a requirement for publication in the symposium issue. All materials should be submitted through the LMU Law Review’s website.
For more information contact the Editor in Chief of the law review at jacob.baggett (AT)lmunet.edu.
Monday, July 21, 2014
Today President Obama signed an Executive Order: "Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government, and Executive Order 11246, Equal Employment Opportunity."
Basically, the Order broadens the grounds of prohibited discrimination by the federal government to encompass sexual orientation and gender identity.
Here's the video put out by the White House:
And here are some more specific details:
The Executive Order broadens the terms of prohibited discrimination in federal employment in Executive Order 11478 by President Nixon, as amended to include "sexual orientation" in Executive Order 13087 by President Clinton to now include "gender identity."
It also broadens the terms of prohibited discrimination by federal contractors in Executive Order 11246 issued by Lyndon Johnson to now include "sexual orientation and gender identity."
As the White House Press Release makes clear, the federal contractors Executive Order does not contain an explicit religious exemption, but does preserve the one issued by George W. Bush, Executive Order 13279, which amended 11246 to exempt "a Government contractor or subcontractor that is a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. Such contractors and subcontractors are not exempted or excused from complying with the other requirements contained in this Order.”
But what about Bush's Executive Order? Entitled "Equal Protection of the Laws for Faith-Based and Community Organizations," the 2002 Executive Order was controversial.
This might be a good time to reread Michele Gilman's terrific article from 2007, If at First You Don't Succeed, Sign an Executive Order: President Bush and the Expansion of Charitable Choice, 15 Wm. & Mary Bill Rts. J. 1103 (2007). Gilman argues that Bush has exceeded his constitutional powers. Her main arguments are about social service providers and grants - - - not at issue in Obama's Executive Order Amendments issued today - - - but she spends a substantial section looking at procurement, including an enlightening discussion of JFK's two executive orders requiring federal contractors to take affirmative action to promote full employment opportunities.
And Gilman's article is a good "test" for those arguing that Obama has exceeded constitutional power by issuing Executive Orders.
While preserving Bush's Order and not including a broader exemption as some had wanted, the Executive Order preserves the status quo. It allows religious entities to discriminate on the basis of religion, but not on any other basis. The White House Press Release adds that "under the First Amendment, religious entities are permitted to make employment decisions about their ministers as they see fit." It does not mention the Religious Freedom Restoration Act, the statute on which last month's controversial Hobby Lobby decision was grounded, allowing a religious exemption from the provision of employee insurance coverage for certain contraception.
Friday, July 4, 2014
Danielle Allen's (Princeton) just pubished her new book Our Declaration: A Reading of the Declaration of Independence in Defense of Equality right in time for your own annual reading of the Declaration--today, July the Fourth.
Allen's book is a meditation on the Declaration that starts with her own teaching of the document and moves through history, philosophy, culture, and, of course, a close reading of the text. More importantly, it's an argument that equality is at the Declaration's core--a point often missed in today's liberty-laden reading of the document (and today's liberty-laden politics).
[The Declaration] makes an argument about political equality. . . . [I]t makes a cogent philosophical case for political equality, a case that democratic citizens desperately need to understand. . . .
The purpose of democracy is to empower individual citizens and give them sufficient control over their lives to protect themselves from domination. In their ideal form, democracies empower each and all such that none can dominate any of the others, nor any one group, another group of citizens. . . .
The point of political equality is not merely to secure spaces free from domination but also to engage all members of a community equally in the work of creating and constantly re-creating that community. Political equality is equal political empowerment.
Allen was recently in the news for her argument that there's really no period after "Happiness" in the text, despite its inclusion in the official transcript of the document at NARA. That's important, because without a period the link between the rights to "life, liberty, and happiness" and the purpose of government is even yet closer. That is: without a period, it's even clearer that government is "instituted among men" in order to secure our rights to "life, liberty, and happiness."
Thursday, June 19, 2014
Nathaniel Zelinsky, writing over at Concurring Opinions, traces the history and subsequent use of Justice Potter Stewart's famous phrase from his concurring opinion in Jacobellis v. Ohio. Zelinsky found earlier uses of the phrase, or very similar phrases, but writes that Alan Novak, one of Justice Stewart's clerks, "remembered the phrase emerging out of a conversation with the justice. And it was, according to Novak, Stewart who wrote the actual opinion, including the seven words." Justice Stewart did not intend "to create a widespread sensation"; indeed, news coverage at the time all but ignored the phrase--and all but ignored Jacobellis, in favor of Quantity of Books v. Kansas, another obscenity case handed down that day.
Zelinsky offers this advice:
The unintentional popularity of "I know it when I see it" should be a note of caution for legal authors in the public sphere, from jurists to commentators more generally: it is very difficult to predict in advance what will capture widespread attention among the non-legal public. . . . On the flip side, the legal corpus is full of opinions whose authors hoped would be earthquakes but whose prose was then largely ignored.
Unanimous Supreme Court in Lane v. Franks: First Amendment Protects Public Employee's Subpoenaed Testimony
In an unanimous opinion authored by Justice Sonia Sotomayor, with an exceedingly brief concurring opinion by Justice Thomas, joined by Scalia and Alito, the Court held in Lane v. Franks that the First Amendment "protects a public employee who provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job responsibilities." However the Court held that the defendant sued in his personal capacity had qualified immunity because such a holding was not "beyond debate."
Recall from our previous discussions of the case including the certiorari grant, the law professors amicus brief, and oral argument that the underlying facts are extremely sympathetic to Edward Lane, the public employee who uncovered gross corruption of an elected state legislator and was later subpoenaed to testify in the federal criminal prosecution. Indeed, even the Attorney General for the state contended at oral argument that the Eleventh Circuit was incorrect to conclude that the employee's speech was not within the strictures of the Court's most recent public employee First Amendment case, Garcetti v. Ceballos.
On the issue of qualified immunity, however, the Court affirmed the Eleventh Circuit, finding that although the Eleventh Circuit was clearly wrong on the merits, the First Amendment right was not sufficiently "clearly established" at the time Lane was terminated by the college president.
My longer analysis of today's opinion is at SCOTUSBlog here.
Thursday, June 5, 2014
In her relatively brief essay Hobby Lobby and the Pathology of Citizens United, available on ssrn, Professor Ellen Katz (pictured) advances a doctrinal and jurisprudential argument - - - rather than political or consequentialist ones - - - for the "danger" of Citizens United v. FEC.
Citizens United read a number of prior decisions to adopt rules those decisions deliberately chose not to espouse. This is not an entirely new move for the Court as it has previously cast off a decision’s doctrinal limits and stated normative claims. The contribution of Citizens United, however, was to normalize this stance. The Roberts Court seems increasingly comfortable approaching precedent just as it did in that case. This Essay identifies this move as a consistent practice across a number of decisions, and explains both why it is likely to be used in the pending ACA cases and beyond, and why it is cause for deep concern.
It is a phenomenon Katz labels "fanciful precedent." She contends it was operative in last Term's controversial Shelby County v. Holder.
She argues that it was prominent in Citizens United related to the Court's use of First National Bank of Boston v. Bellotti (an issue of footnotes as we discuss here and here), in a manner that might foreshadow any Robert Court opinion in Hobby Lobby "relying" on United States v. Lee and Braunfeld v. Brown.
Katz's short piece is worth a read as we await the Court's decision in Sebelius v. Hobby Lobby Stores, Inc. (and Conestoga Woods Specialties, Corp. v. Sebelius) argued in March.
Thursday, May 22, 2014
CALL FOR PAPERS & PARTICIPATION ClassCrits VII
Poverty, Precarity, and Work:
Struggle and Solidarity in an Era of Permanent(?) Crisis
U.C. Davis School of Law November 14-15, 2014
From the call:
"This year marks the 50th anniversary of the enactment of the Civil Rights Act of 1964, President Johnson’s declaration of a “War on Poverty,” and the establishment of the first Neighborhood Legal Services Program pilot in Washington, D.C. Each of these initiatives attempted to address problems of structural economic inequality—problems that remain with us nationally and internationally . The seventh meeting of ClassCrits will focus on work, poverty, and resistance in an age of increasing economic insecurity.
In law, it is generally easier to discuss “poverty” than to look deeply into its causes and incidents—including income and wealth inequality, the close interaction of class and race in America, and the connections between gender and economic hardship. It is also easier to discuss “poverty” than what some scholars call “precarity”—the increasing vulnerability of workers, even those above the official poverty line, to disaster. Precarity has both economic and political roots. Its economic sources include the casualization of labor, low wages, persistently high unemployment rates, inadequate social safety nets, and constant vulnerability to personal financial catastrophes. Its political sources include the success of neoliberal ideology, upward redistribution of wealth, increasing polarization and dysfunction in Congress, and the dependence of both political parties on a steady stream of big money. Precarity is also not limited to the United States, but is reshaping space around the globe. While the aftermath of the housing bubble and subsequent foreclosures drain home values across America and strip equity disproportionately from minority neighborhoods, in developing-country “megacities,” millions of slum-dwellers are displaced to make way for high-end residential and commercial real estate developments.
Finally, this conference focuses on challenging structural forms of inequality from a place of compassion and creating possibilities for resilience. In the words of Martin Luther King, Jr., "True compassion is more than flinging a coin to a beggar. It comes to see that an edifice that produces beggars needs restructuring.” In this spirit, ClassCrits VII will explore the risks, uncertainty, and structural challenges of this period and discuss possibilities for shared goals and new forms of resistance."
More details here.
Tuesday, May 20, 2014
Michael Waldman, writing over at Politico, tells the story of how the NRA rewrote the Second Amendment, not through the Article V process, but through persistent and carefully calculated political action and legal argument. Over time, the NRA's position worked its way into the consciousness of politicians and judges and lawyers and ordinary people, until Heller seemed to many (and obviously most on the Court) like an inevitability. That process--and not raw legal argument, not some new and significant historical find, and certainly not a constitutional amendment--is how we got the individual right to keep and carry guns, according to Waldman.
Waldman, the president of the Brennan Center for Justice at NYU, writes on the occasion of the release of his latest book, The Second Amendment: A Biography.
Waldman's piece in Politico is as much about the political process of constitutional change as it is about the Second Amendment. In that way, it's a how-to for anyone interested in influencing the direction of constitutional law outside the amendment process, and a healthy reminder that a well organized movement can still influence the direction of American constitutional law:
So how does legal change happen in America? We've seen some remarkably successful drives in recent years--think of the push for marriage equality, or to undo campaign finance laws. Law students might be taught that the court is moved by powerhouse legal arguments or subtle shifts in doctrine. The National Rifle Association's long crusade to bring its interpretation of the Constitution into the mainstream teaches a different lesson: Constitutional change is the product of public argument and political maneuvering. The pro-gun movement may have started with scholarship, but then it targeted public opinion and shifted the organs of government. By the time the issue reached the Supreme Court, the desired new doctrine fell like a ripe apple from a tree.
Cass Sunstein, writing over at the New Republic, called Richard Epstein's latest book, The Classical Liberal Constitution: The Uncertain Quest for Limited Government, "passionate, learned, and committed," "a full-scale and full-throated defense of his unusual [libertarian] vision of the Constitution," and his "magnum opus." Sunstein also places Epstein at the center of Tea Party constitutionalism, "the man who made libertarians wrong about the Constitution." "Everyone knows who Rand Paul's father is, but in an intellectual sense it is Richard Epstein who is his daddy."
But Sunstein argues that Epstein is a "stranger in a strange land" in arguing about the Constitution--that he "is steeped not in American constitutional law but in Anglo-American common law." According to Sunstein, Epstein's views are more moral than doctrinal or historical (and certainly not originalist), and that he's "playing Dworkin's game" of reading the text through a moral lens:
Epstein is a moral reader. He objects that progressives ignore the constitutional text, and of course he cares about it, but he acknowledges that on many issues that matter, the text, standing alone, does not mandate his interpretation. Where the rubber hits the road, his real argument is not about Madison and Hamilton, the inevitable meaning of words, or the placement of commas; it is an emphatically moral one. Informed though it is by a certain strand in liberal thought, it reflects what he thinks morality requires. Of course other people think differently. There is an important lesson here about Tea Party constitutionalism as a whole, for the supposed project of "restoring" the original Constitution, or going back to the genius of the Founding generation, is often about twenty-first century political convictions, not about the recovery of history.
Nominations/Applications due July 1, 2014
for the IIT Chicago-Kent College of Law/Roy C. Palmer Civil Liberties Prize
The prize honors a work of scholarship - - - book or article - - - that explores the tension between civil liberties and national security in contemporary American society.
"The $10,000 prize is designed to encourage and reward public debate among scholars on current issues affecting the rights of individuals and the responsibilities of governments throughout the world."
Last year's prize-winner was The Counterinsurgent's Constitution: Law in the Age of Small Wars (Oxford University Press 2012) by Ganesh Sitaraman.
Wednesday, May 7, 2014
If the defining issue of the United States is inequality, how is the nation's highest Court addressing that issue?
According to Michele Gilman's new article, A Court for the One Percent: How the Supreme Court Contributes to Economic Inequality, forthcoming in the Utah Law Review and available on ssrn, the Court is decidely part of the problem rather than part of the solution.
Gilman's article is valuable because it traverses several different doctrinal areas. Obviously, she discusses Citizens United. But - - - refreshingly - - - she argues that "Citizens United is just one piece of a larger problem." She contends that this problem did not begin with the Roberts' Court, as her discussions of Harris v. McCrae, San Antonio Independent School District v. Rodriguez, and Dandridge v. Williams illustrate. Ultimately, she suggests that the Court stands in the way of addressing inequality because the legislative and policy suggestions that have worked in other "affluent democracies" will be deemed unconstitutional in the United States:
We currently have a Court majority that is not only unsympathetic to inequality arguments, but also seemingly oblivious to (or skeptical of) the connection between government policies and market outcomes. The Court has ruled that it is up to the legislative branch, rather than the Courts, to remedy economic inequality. Yet, the Court has doomed legislative enactments that would ameliorate inequality, such as desegregation plans, campaign finance reforms, and consumer protection laws. Conversely, when legislatures enact policies that tend to worsen economic inequality or magnify its effects, the Court defers, such as school financing laws and voter identification requirements. In short, the Court’s rulings consistently sustain policies that create or maintain economic inequality.
Gilman has some explanations for this state of affairs, but, more importantly, she proposes a proactive five point plan of change. This important article is worth a read.
Monday, May 5, 2014
Supreme Court justices are opportunistic supporters of free speech, according to a study by Profs. Lee Epstein (Southern California/Washington University), Christopher M. Parker (Centenary College), and Jeffrey A. Segal (Stony Brook), reviewed by Adam Liptak in the NYT. That is, "liberal (conservative) justices are supportive of free speech when the speaker is liberal (conservative)."
The study looked at 516 free speech cases from 1953 to 2011, "from Hugo Black to Elena Kagan," involving "liberal" and "conservative" speech and concluded that "the votes of both liberal and conservative justices tend to reflect their preferences toward the ideological groupings of the speaker."
Among sitting justices, the study found that Justice Scalia had the largest gap between votes for liberal and conservative speech, followed closely by Justice Thomas.
The liberals "present a more complex story." The study found that the gap for Justice Ginsburg was small, and for Justice Breyer "negligible." The study did not include Justices Sotomayor and Kagan, due to lack of meaningful data.
Friday, April 25, 2014
As we explained when certiorari was granted in Lane v. Franks, the case involves a public employee's First Amendment rights in the context of retaliation and raising questions about the interpretation of Garcetti v. Ceballos. My preview of Monday's oral argument is at SCOTUSBlog here.
The Brief of Law Professors as Amici Curiae in Support of the Petitioner, the employee Edward Lane, available on ssrn, advances two basic arguments.
The first argument is essentially that the Eleventh Circuit's opinion was a clearly erroneous expansion of Garcetti to include Lane's subpoened testimony in a criminal trial. Here's an especially trenchant paragraph:
But the Garcetti Court took great pains to distinguish Mr. Ceballos from Mr. Pickering [in Pickering v. Board of Education (1968)], who spoke about what he observed and learned at his workplace and identified himself as a teacher in doing so, and Ms. Givhan [in Givhan v. Western Line Consolidated School District (1979)], who spoke to her own supervisors about what she observed at her workplace and did so while at work. Neither of these employees could have prevailed if any speech they would not have made but for their employment were excluded from the First Amendment’s protections. The sole fact distinguishing Mr. Ceballos from these other two defendants was that neither Mr. Pickering nor Ms. Givhan was required by their employment contracts to engage in the speech for which they were punished. Petitioner was not required by his job duties to testify in court, so his speech is as protected as Ms. Givhan’s and Mr. Pickering’s.
(emphasis in original). There are similar arguments in the merits briefs, but advancing this doctrinal clarity in the law professors' brief is not misplaced, given that the Eleventh Circuit's summary opinion had so little specific analysis.
Perhaps more common to an amicus brief are the policy arguments raised here regarding the importance of protecting testimony by public employees from retaliation by their government employers. The brief's "judicial integrity" argument seeks to draw an interesting parallel, arguing it is
crucial that public employees be able to speak freely and truthfully about government malfeasance so that the judicial process is not distorted. Distortion of the litigation process occurs when public employees do not feel free to testify in various legal proceedings for fear of losing their jobs. This Court expressed analogous concerns in Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001), where the Court struck down as violative of the First Amendment a federally imposed restriction prohibit- ing Legal Services Corporation (“LSC”)-funded attorneys, as a condition of the receipt of federal funds, from challenging the legality or constitutionality of existing welfare laws. . . . No less than in Velazquez, “[t]he restriction imposed by the [lack of protection for public employee testimonial speech] threatens severe impairment of the judicial function.” Id. at 546.
The brief argues in favor of a bright line rule that testimony is "citizen speech" and thus protected by the First Amendment. Whether the line should be so bright might be a topic at oral argument given the arguments in the other briefs.
The named authors of the law professors brief, ConLawProfs Paul Secunda, Scott Bauries, and Sheldon Nahmod, and the signatories, provide a terrific model of "engaged scholarship" and advocacy, and all in approximately 25 pages.
Tuesday, April 15, 2014
Drew Cohen recently published A Constitution at a Crossroads: A Conversation with the Chief Justice of the Constitutional Court of South Africa in the Northwestern Journal of International Human Rights. The interview covers transformative constitutionalism (including judicial transformation and the role of judges) and current constitutional issues in South Africa, with some background and context for the uninitiated. It's a terrific piece on the current and future state of South African constitutionalism; it has some gems on comparative constitutionalism, as well.
Here's a clip of the Chief Justice's response to Cohen's question whether South African judges should be "umpires":
Given our background and our Constitution, judges do not have the luxury to sit back and pretend that we do not have serious challenges, which can be addressed through a passive justice system. I do not think we can afford to be the type of umpires Chief Justice Roberts had in mind.
Whatever we, as judges, do must facilitate nation-building so far as the case makes it possible by actively addressing the socioeconomic challenges that still confront certain sectors of the community as well as addressing the position of women in every sector of our society. Whereas that may not be feasible for judges in the U.S., it must [be the case] in South Africa. We have a different set of challenges that require judges to be somewhat proactive in the manner in which they approach their judicial responsibilities.
On the use of foreign law:
Once our jurisprudence gets settled, once it gets to the point that everyone can say that it is fairly well developed, there will be very little reason to rely as much as we used to on the jurisprudence of other countries. With that said, obviously, we will still need to have some regard to the latest developments in comparable jurisdictions. This is particularly true with regards to the area of socioeconomic rights and property law.
On closing the gap between reality and an aspirational Constitution:
What the Court can do, however, is interpret the Constitution in a manner so as to ensure that every official who has a constitutional responsibility to close that gap . . . are held accountable.
I think that the Court, however, has done fairly well in its efforts to close that gap. Look at our judgments dealing with socioeconomic rights[,] . . . health issues[,] . . . housing[,] . . . natural resources . . . .
On the next big issues:
The next major court battles will involve the agricultural sector. If you look at the agricultural sector then you will realize that a very large percentage of commercial farmers are still those from the previously advantaged group . . . . For the few [previously disadvantaged] that have received land through the government's redistribution system, it does not look like enough was done to empower them to be able to use the land productively. So, I think a lot needs to be done in the area of land redistribution but this must occur in a very, very slow and careful process.