Constitutional Law Prof Blog

ConLaw at AALS: Looking Towards Fisher

If you're at AALS, don't miss today's double panel on affirmative action in education, starting at 2pm:

This joint program will explore issues of equal educational opportunity. The first panel will consider these issues in the context of elementary and secondary education, with emphasis on school financing. The second will deal primarily with the constitutionality of racial affirmative action in higher education admissions. Both panels will consider the implications of the Court’s grant of review in Fisher v. University of Texas, involving an undergraduate affirmative action admissions program.

In 1973, the Court held in Rodriguez that there was no fundamental right to education. Plaintiffs alleged that substantial disparities in educational opportunity violated the Constitution. The Court found the Texas elementary and secondary school finance system constitutional because it was rationally related to advancing local control of education; the Court hesitated to second guess the Texas legislature in light of federalism principles and concerns about judicial competency to deal with school finance systems. 

 The first panel will focus on the legacy of Rodriguez and how the law can address educational disparities in elementary and secondary education. Panelists also will discuss the effect of limits on use of race-conscious programs under the 2007 Parents Involved decision, and will consider the implications of the grant of review in Fisher.In 1978, a deeply fractured Court decided Bakke. Only one paragraph of Justice Powell’s pivotal opinion was joined by four other justices; it held that a “properly devised admissions program” that took race into account could be constitutional. He envisioned a flexible, individualized program that would provide the educational benefits of a diverse class. In 2003, the Court in Grutter held that diversity could be a compelling interest; the Court upheld Michigan Law School’s program, even as it held (in Gratz) that Michigan’s more mechanical undergraduate affirmative action program violated equal protectio

The second panel will consider the legacy of Bakke and discuss how the Court should decide Fisher. Is racial diversity a compelling interest? What is the role of empirical evidence? What do the empirical studies tell us about the benefits or harms of affirmative action? Diversity may provide better learning outcomes for all students (or for certain students), better preparation of students for a diverse world, and better social results due to formation of a diverse group of leaders. Which potential benefits “count”? How can a program be narrowly tailored to advance the interest in educational diversity?

Speakers

Speaker: Kevin D. Brown, Indiana University Maurer School of Law
Speaker: Erwin Chemerinsky, University of California, Irvine School of Law
Speaker from a Call for Papers: Paul Horwitz, The University of Alabama School of Law
Speaker: Jennifer Mason McAward, Notre Dame Law School
Speaker from a Call for Papers: Eboni S. Nelson, University of South Carolina School of Law
Speaker: Angela I. Onwuachi-Willig, University of Iowa College of Law
Speaker: Michael A. Rebell, Columbia University School of Law
Co-Moderator: Kimberly Jenkins Robinson, The University of Richmond School of Law
Speaker: Richard H. Sander, University of California, Los Angeles School of Law
Co-Moderator: Mark S. Scarberry, Pepperdine University School of Law

More information here.

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Daily Read: SCOTUS Website on DOMA and Proposition 8

The Supreme Court of the United States has updated its website to include a page entitled "Filings in the Defense of Marriage Act  and California’s Proposition 8 cases,"  or   "DOMPRP8."

It promises to be helpful, with "live links to the orders, case filings, and other information pertaining to the Defense of Marriage Act and California’s Proposition 8 cases."   

The disclaimer is worth a look:

Disclaimer: We have provided a link to this site because it has information that may be of interest to our users.  The Supreme Court of the United States does not necessarily endorse the views expressed or the facts presented on this site.

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Where Are the Guns? Constitutional Considerations of Publication of Mapped Information

An interactive map revealing gun information published by a suburban New York newspaper is causing an uproar.  The newspaper explained, to "create the map, The Journal News submitted Freedom of Information requests for the names and addresses of all pistol permit holders in Westchester, Rockland and Putnam [Counties]. By state law, the information is public record."

The newspaper's actions come in the wake of renewed conversations regarding gun control and ownership.  However, the disclosure of information using google maps is not new.  Activists used Google maps to disclose the names, addresses, and contributions made by Californians in support of Proposition 8 that prohibited same-sex marriage.  (Recall Prop 8 is now before the United States Supreme Court.)

While not using mapping applications, the Supreme Court's 2010 decision in Doe v. Reed is relevant.  In Doe v. Reed, the Court 8-1 rejected a First Amendment challenge to the disclosure of names on a petition seeking a ballot initiative, again prohibiting same-sex marriage, in Washington state.  Interestingly, during the oral argument, the Justices seemed often to conflate the Washington initiative with California's Proposition 8. Yet the fact that state law through its public record law was merely requiring disclosure, rather than prohibiting speech, was central to the Court's opinion that there was not a right to remain anonymous.  The names were thus disclosed.

State law could, however, provide a "Firearms Ownership Privacy Act" such as those being advocated by the National Rifle Association that might seek to declare gun permits non-public records.  The firearms privacy act passed in Florida, prohibiting doctors from inquiring about gun ownership, was enjoined as a violation of the First Amendment.

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In Memoriam: Robert Bork

Conservative - - - and controversial - - - jurist and unsuccessful Supreme Court nominee Robert Bork has died as reported in the New York Times.

Bork's views on privacy, including when his own was arguably violated during his nomination process, and his views on civil liberties, including when he was was a law professor, marked him as conservative.  But perhaps he will be best remembered for the anti-Bork forces that prevented his nomination to the highest court.

He discusses his nomination process and general theories of constitutional law in his book, The Tempting of America, and updated some of these views in his later book Slouching Towards Gomorrah: Modern Liberalism and American Decline.

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Daily Read: Greenhouse on Standing in the Same-Sex Marriage Cases

The Court's grant of certiorari last week in two same sex marriage cases included the question of standing in both.

The standing issues atypically arise not from the original plaintiffs' qualifications under Article III of the Constitution, but flow from the governments' decision not to defend the constitutionality of the challenged government action: California's refusal to defend Proposition 8 in Perry v. Brown and the Obama Administration's decision not to defend DOMA in Windsor (and in previous cases beginning in February 2011). 

The inimitable Linda Greenhouse shares her analysis of the standing issues, admitting she is fascinating by the "procedural game the Supreme Court is playing in the same-sex marriage cases."

Greenhouse writes in the NYT Opinionator that her original thought was that the Court could be using "the jurisdictional issue as a kind of safety valve for a deeply polarized court."

But on reflection, that theory doesn’t really make sense, because a finding of no jurisdiction under these circumstances would call into question the court’s ability to deal with other instances of changed government positions, and would be inconsistent with the action the court took just last week in the prison immunity case. Further, a finding of no jurisdiction would amount to a huge grant of power to the executive branch at the expense of Congress, enabling the president to cut off further judicial review any time a law that he never liked in the first place is declared unconstitutional by a lower court. While executive power certainly has its fans on the court, including Chief Justice Roberts and Justice Antonin Scalia, I’d be surprised if that sweeping proposition could capture five votes.

Greenhouse then provides some her own hypothesis - - - and it is certainly worth a read.

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Daily Read: Rosen on Kennedy on Same-Sex Marriage Cases

Writing in the New Republic today, Jeffrey Rosen focuses on the presumably central role Justice Anthony Kennedy (pictured) will play in the ultimate decision on the two same-sex marriage cases granted certiorari last Friday.

Regarding precedent, Rosen writes:

Moreover, regardless of what Roberts thinks of Kennedy’s opinions in Romer and Lawrence, they’ve been on the books for years and it’s impossible to uphold DOMA or Prop 8 without also overturning Kennedy’s holding that preserving tradition for its own sake isn’t a permissible basis for laws that discriminate against gays and lesbians.

Rosen's is only one of the tidal wave of commentators who have proffered predictions and analysis.  An excellent collection is in Monday's SCOTUSBlog round-up by Marissa Miller.

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Daily Read: Kende on Revolution and Pragmatism in Constitutionalism

Revolution and Pragmatism?  Aren't they oppositional concepts, and indeed, opposing realities? 

Mark Kende (pictured) argues that we shouldn't be so sure.  In his article, Constitutional Pragmatism, The Supreme Court, and Democratic Revolution, forthcoming in Denver University Law Review and available in draft on ssrn, Kende demonstrates that the usual conceptions of "pragmatism" are incomplete.  He advances several types of pragmatic impulses that are consistent with the US constitutional revolution and subsequent jurisprudence such as "common sense,transitional, political, democratic, economic, empirical, common law,flexible, critical, and comprehensive pragmatism."  He also discusses the types of constitutional pragmatism that are less consistent with revolution: prudential and efficiency-oriented pragmatism. 

Kende aims to provide a typology of pragmatism, as a grounding for considering "constitutional pragmatism more intelligently, as well as see its complexity and ubiquity."  For Kende, it is pragmatism - - - rather than originalism or living constitutionalism - - - that has the most descriptive, and perhaps prescriptive power.

Kende's article is an excellent intervention in the ongoing debates of constitutional interpretation.

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Second Circuit On First Amendment Right to Promote Drug for Off-Label Use Without Criminal Consequences

In a sharply divided and long overdue opinion in United States v. Caronia issued today, a panel of the Second Circuit reversed a conviction relying primarily on the Supreme Court's 2011 decision in Sorrell v. IMS Health, Inc.

The conviction, according to the jury verdict, was for "Conspiracy to introduce a misbranded drug into interstate commerce in violation of 21 U.S.C. §§ 331(a) and 333(a)(2)."  However, Judge Denny Chin, writing for the majority, emphasized that Caronia's statements - - - promoting the off-label use of the drug while he was as a pharmaceutical marketer - - - were the basis of the conviction: "Caronia was, in fact, prosecuted and convicted for promoting Xyrem off-label."  Thus, because the majority rejected the government's argument that the statements were (merely) evidence of intent, the conviction raised a First Amendment issue.  The panel then extensively discussed Sorrell, beginning with an explication of its two-step analysis:

First, the Court considered whether the government regulation restricting speech was content- and speaker-based. The Court held that it was; the regulation was therefore subject to heightened scrutiny and was "presumptively invalid."  Second, the Court considered whether the government had shown that the restriction on speech was consistent with the First Amendment under the applicable level of heightened scrutiny. The Court did not decide the level of heightened scrutiny to be applied, that is, strict, intermediate, or some other form of heightened scrutiny.

[citations omitted].  The panel concluded "that the government's construction of the FDCA's misbranding provisions imposes content- and speaker-based restrictions on speech subject to heightened scrutiny," and then that "the government cannot justify a criminal prohibition of off-label promotion even under Central Hudson's less rigorous intermediate test."  The majority seems especially troubled that the crime, at least as the court has constructed it,  is "speaker-based because it targets one kind of speaker -- pharmaceutical manufacturers -- while allowing others to speak without restriction." 

In a vigorous dissent, Judge Debra Ann Livingston stressed that speech acts are often evidence of intent and that "the majority calls into question the very foundations of our century-old system of drug regulation."  She provides a literary analogy to refute Caronia's argument that he "merely discussed “a perfectly lawful practice: the use of a lawful drug, Xyrem, for off-label purposes.” 

But the fact that a physician or a patient could legally use Xyrem for an off-label purpose is not enough to make out Caronia’s First Amendment claim. There might be no law forbidding the consumption of arsenic. But this would not endow Abby and Martha with a First Amendment right to offer arsenic-laced wine to lonely old bachelors with the intent that they drink it. See Arsenic and Old Lace (Warner Bros. Pictures 1944). And any statements Abby or Martha made suggesting their intent—even if all of the statements were truthful and not misleading—would not be barred from evidence by the First Amendment simply because arsenic might legally be consumed.

 

 

 

While Judge Chin's opinion could - - - taken to its logical conclusion - - - have a dramatic effect, it seems limited to the pharmaceutical arena.

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Daily Read: Joslin on the Responsible Procreation Government Interest of DOMA

Should the Court take certiorari in at least one of the circuit cases challenging DOMA, the Defense of Marriage Act, as is widely anticipated, the government interest will be at issue.  Courtney Joslin's article, Marriage, Biology, and Federal Benefits, forthcoming in Iowa Law Review and available in draft on ssrn, is a must-read on the "responsible procreation" interest that is often proffered.  Joslin (pictured)  argues that this interest is based on what she calls the "biological primacy:" an "underlying premise that the government’s historic interest in marriage is to single out and specially support families with biologically-related children."

Joslin's task is decidely not to assess the "fit" of DOMA's means chosen to this interest, under any equal protection standard, whether it be intermediate scrutiny as some, including the Second Circuit in Windsor  have applied, or rational basis as the First Circuit applied. 

Instead, Joslin interrogates whether this interest is factually true:  "Has the federal government historically accorded special solicitude and protection to families comprised of parents and their own biological children?"   She demonstrates that the interest is, at the very least, not a consistent one.  She examines the "history of federal family-based benefits in two areas: children’s Social Security benefits and family-based benefits for veterans and active members of U.S. military," and demonstrates that in a "vast array of federal benefits programs, eligibility is not conditioned on a child’s biological connection with his or her parent."

She concludes:

From the early years of federal family-based benefits, Congress both implicitly and explicitly extended benefits to children who were biologically unrelated to one or both of their parents. This unearthed history exposes that responsible procreation is based on normative judgments about sexual orientation and gender, not history and tradition.

Indeed, although Joslin does not discuss Loving v. Virginia, her article is deeply reminiscent of the Court's reasoning in Loving when it essentially rejected Virginia's proffered rationale of "racial integrity," with Chief Justice Warren writing that the "fact that Virginia prohibits only interracial marriages involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy."  Joslin's article should be required reading for anyone analyzing DOMA. 

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Daily Read: Collegiality and Same Sex Marriage Controversies

As the news is filled with the expected decision from the United States Supreme Court on whether - - - and if so, in what constellation - - - to grant certiorari on the issue of same-sex marriage, including both Proposition 8 and DOMA, Lyle Denniston's excellent discussions at SCOTUSBlog are a welcome resource.

But equally vital is Tobias Barrington Wolff's recent brief remarks, to be as an essay in Fordham Law Review entitled Collegiality and Individuality Dignity, and available on ssrn, that discusses the more personal aspects of the issues for some ConLawProfs.

Wolff (pictured) explores the "deep tension that exists for LGBT scholars and lawyers who work" on issues of same-sex marriage and other sexuality issues, "between principles of collegiality and basic principles of individual and human dignity."   For example, "there is this seeming willingness on the part of antigay advocates to go around calling LGBT people unfit parents, and to expect to be treated with courtesy in response. I’ve been doing this for a dozen years, and I have to tell you, in very personal terms: I’m getting a little tired of being courteous in response to this kind of argument."

Wolff concludes:

I’ll just say quickly: One can refuse to engage with these arguments and the people who make them, which is a choice that some LGBT scholars make and is a choice that has obvious costs associated with it. One can continue engaging in a collegial fashion, which is the choice that I have made for most of my career, but carries serious individual costs. Or one can engage with a somewhat sharper- edged critique of the nature of the arguments that are being made, which is part of what, of course, I am doing today, which has its own set of costs and disruptions of the normal collegial atmosphere about it. I acknowledge that.

But I think that the impact upon the individual dignity of LGBT scholars from having to confront these ugly, ugly arguments over and over again is something that needs to be acknowledged as one of the central, central dynamics that warrants attention in conversations about these issues.

Wolff's worth-reading essay is situated in the context of scholarly discourse, but many ConLawProfs experience similar dynamics in the classroom.  How do we discuss these arguments and issues without assaulting each other's dignity?

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Daily Read: Political Parties and Judging

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

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

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

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

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

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

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Daily Read: McElroy on Cameras in the Supreme Court

The energy surrounding the Court's anticipated grant of certiorari in at least one of the same-sex marriage cases - - - either one or more of the DOMA cases or the Prop 8 case (Perry v. Brown) - - - raises yet again the question of public access to Supreme Court oral arguments.  While these cases are only the latest, they perhaps have special resonance given the Court's quelling of the planned broadcast of the Proposition 8 trial in federal court on dubious procedural grounds.

Prof Lisa McElroy's article, Cameras at the Supreme Court: A Rhetorical Analysis, forthcoming in BYU Law Review and available in draft on ssrn, argues persuasively for the broadcast of Supreme Court proceedings, based on the public's interest in accessing its government, including the judicial branch.  The contribution of McElroy's excellent piece, however, is that it is not simply an argument, but an engagement with the "stories" the Court - - - and its Justices - - - tell about the Court and its lack of cameras.  McElroy writes that there

can be no doubt that the Court has sincere concerns when it comes to granting public access to the Supreme Court, especially through broadcasting of official Court work. Among them are a desire for day-to- day privacy, a concern that allowing cameras or internet streaming will somehow damage the public’s perception of the Court,  fears that broadcasting could somehow subject the Court or the Justices personally to mockery, and concerns that funny or less-than-devout comments made during oral argument might end up on the Internet or on programs like Jon Stewart.  It is concerned that televising Supreme Court proceedings would change the very nature of those proceedings.

But, she continues,

the question we must ask is whether these concerns add up to a story with a factual basis, or whether they are a fairy tale that the Justices tell Americans–perhaps even themselves. Are the Court’s concerns borne out objectively, or are they instead a part of the story the institution has created (consciously or unconsciously) to justify its refusal to allow the American people virtual and physical access? Are inaccessibility, grandeur, and intimidation the only paths to legitimacy and respect?

Additionally, McElroy discusses whether the members of the Court are simply uncomfortable with technology, or jealous of their privacy (an increasingly untenable rationale), or worried about security, or not interested in change.

For any scholar or student considering issues of public access to Court proceedings, McElroy's article is a treasure as well as a treasure trove.

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Raisins Going to the Supreme Court on Takings Clause

Just when it seems as if the "takings clause revolution" is over, it re-emerges.  This time, the property is not a "little pink house," but raisins. 

The United States Supreme Court has granted certiorari in Horne v. USDA.  As we discussed last year, the Ninth Circuit upheld the constitutionality of a USDA regulatory scheme regarding raisins against a takings clause challenge.  The central requirement at issue mandates that a certain percentage of a raisins be put in "reserve" each year - - - this fluctuates yearly and by controlling raisins on the market is a means of indirectly controlling prices. The Hornes argued that  "the requirement that they contribute a specified percentage of their annual raisin crop to the government-controlled reserve pool constitutes an uncompensated per se taking in violation of the Fifth Amendment."

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Daily Read: Emma Larkin on Burma/Mynamar

As President Obama travels to Burma/Myanmar, becoming the first United States President to do so,  most ConLawProfs will be recalling Crosby v. National Trade Council, decided by the Court in 2000.   In an unanimous decision, the Court declared unconstitutional Massachusetts' 1996 procurement statute barring the state from doing business with almost any entity "doing business" with Burma.  The Court held the state law was invalid under the Supremacy Clause because of a Congressional grant of authority to the President over any economic sanctions for Burma.  The Massachusetts law thus undermined the diplomatic powers of the President.   

The repressive history of Burma/Myanmar is essential to understanding the President's current diplomacy as well as Massachusetts' legislation in Crosby. 

And essential to Americans seeking to understand Burma is the work of Emma Larkin.  Widely regarded as one of the best books on Burma is Emma Larkin's Finding George Orwell in Burma.  In the fascinating and well-written book published in 2006, Larkin - - - not her real name - - - writes of contemporary Burma and George Orwell's history in Burma, arguing convincingly that Orwell's novel 1984 was actually modeled on Burma and continued to be relevant.   Earlier this year, Larkin wrote compellingly of the "Burma Spring" the popularity of former dissident Aung San Suu Kyi, both in an essay and in a lengthy review of Peter Popham's The Lady and the Peacock: The Life of Aung San Suu Kyi.

Obama argues that his visit is an "acknowledgment that the country is making progress toward reform."  Read Emma Larkin's book, if you haven't already done so, to discover what this might mean.

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Daily Read: Sotomayor on Gender Equality

Today's daily "read" is a view: Justice Sonia Sotomayor with "Abby," the Sesame Street character, discussing careers for women:

 

 

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Daily Read: Take a Look at Glamour Magazine

While Glamour magazine might not be a usual ConLawProf read, the Women of the Year issue features none other than Supreme Court Justice . . . Ruth Bader Ginsburg pictured "wearing her signature white lace collar, at the Supreme Court in Washington, D.C."

Within the seemingly strict word limit, Dahlia Lithwick's profile manages to include quotes not only from Ginsburg, but also President Clinton, Justice Scalia, and Rachel Maddow. 

Unfortunately, Justice Ginsburg did not land the cover of Glamour, but this is a fun read and might prove inspiring for its targeted demographic of young women.

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Daily Read: New Rehnquist Biography

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

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

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

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

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

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

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Daily Read: Collins on Toobin on the Court

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

Here's an especially intriguing sample:

Question:

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

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

Answer:

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

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

 

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

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Daily Read: Diane Marie Amann on Justice Stevens as an Orginalist

The labels of constitutional interpretative practice often attached to Justices such as "legal realist" or "originalist" are both useful and problematical.  In her essay, John Paul Stevens, Originalist, 106 Northwestern University Law Review 743 (2012), available on ssrn, Professor Diane Marie Amann (pictured), makes an argument that Justice Stevens could just as well be called an originalist as his more usual label of pragmatist. 

Amann's essay argues that scholars need to recognize that Stevens "has done battle upon originalism’s own field of combat."   She highlights Stevens opinions in the "gun rights" cases of District of Columbia v. Heller (2008) and McDonald v. City of Chicago (2010), the latter of which was rendered the day before Stevens retired after almost thirty-five years as a Justice.

Importantly, she also situates Stevens career within the history of the Court, especially Justices appointed by FDR such as Justice Rutledge, for whom Stevens clerked in 1947.

For anyone teaching, writing, or studying theories of constitutional interpretation, Amman's essay is a must-read.

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Supreme Court Refuses to Stay Sixth Circuit's Ruling on Ohio Early Voting

In a very brief Order today, the United States Supreme Court stated in Husted v. Obama for America: "The application for stay presented to Justice Kagan and by her referred to the Court is denied."

Thus, the Court let stand the Sixth Circuit's opinion upholding the district court's finding that the Ohio differential early voting scheme violated the Equal Protection Clause of the Fourteenth Amendment.  Our previous discussion is here.

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