Reproductive Rights Prof Blog

Book Review: Joan Biskupic's Biography of Justice Scalia, "American Original"

Slate Magazine: The Alienator, by Emily Bazelon:

Making sense of Justice Scalia's personality—and his theory.

In Joan Biskupic's new biography of Antonin Scalia, American Original, the justice wears a wreath of superlatives. He is the most quoted member of the Supreme Court and the one scholars write about most. He is the justice who writes the most concurrences—separate opinions that accept the holding of a majority opinion but usually part company with its reasoning. He is also the justice who prompts the most laughter at oral argument, according to two bona fide studies. Court observers pick Scalia as the most talkative. He disagrees with that one. They would probably call him the most argumentative. And he'd disagree with that, too.

Here's my superlative, to add to the pile: Scalia is the justice liberals most love to hate and conservatives most love. He is also the only justice to use the Sicilian finger flick in public or to say "quack quack" during a speech (after he was asked to recuse himself from a case in which Dick Cheney was the named plaintiff, because he'd gone duck hunting with the vice president). As Biskupic says, her subject is "a showman, a streetwise guy, and a pulverizer." The more I read about his penchant for battle, and in particular about his unrelenting pattern of pushing away other justices at critical moments, rather than compromising to win a majority, another label occurred to me: the alienator. . . .

Neal Devins on Planned Parenthood v. Casey and State Abortion Politics

Neal Devins (William & Mary Law School) has posted How 'Planned Parenthood v. Casey' (Pretty Much) Settled the Abortion Wars on SSRN.  Here is the abstract:

More than twenty-one years after Robert Bork’s failed Supreme Court nomination and seventeen years after Planned Parenthood of Southeastern Pennsylvania v. Casey, the rhetoric of abortion politics remains unchanged. Pro-choice interests, for example, argue that states are poised to outlaw abortion and that Roe v. Wade is vulnerable to overruling. In this essay, I will debunk those claims. First, I will explain how Casey’s approval of limited abortion rights reflected an emerging national consensus in 1992. Second, I will explain why the Supreme Court is unlikely to risk political backlash by formally modifying Casey - either by restoring the trimester test or by overruling Roe altogether. Third (and most important), I will explain how it is that Casey stabilized state abortion politics. The national consensus favoring limited abortion rights remains intact. Correspondingly, the template of laws approved by the Supreme Court in Casey were politically popular at the time of Casey and remain politically popular today. Indeed, since Pennsylvania has always been one of the most restrictive states when it comes to abortion regulation, very few states are interested in pushing the boundaries of what Casey allows. And while a handful of outlier states have pushed the boundaries of what Casey allows, these states (which account for a quite small percentage of abortions) have largely worked within parameters set by the Court in Casey. Perhaps most telling, neither the confirmation of Chief Justice Roberts and Justice Alito nor the Supreme Court’s approval of federal partial-birth abortion legislation has significantly impacted state antiabortion efforts. For all these reasons, pro-choice and pro-life interests would be better served shifting their energies away from legalistic fights over abortion regulation and toward shaping the hearts and minds of the women who may seek abortions and the doctors and clinics that may provide abortion services. 

Gender and Judicial Quality? Paper concludes: "Bring on the Women!"

Slate Magazine: Do Women Make Better Judges?, by Stephen Choi, Mitu Gulati, Mirya Holman, & Eric Posner:

Asked and answered—with data.

Justice Sonia Sotomayor's elevation to the Supreme Court brought to the surface a long-simmering controversy about the relationship between gender and judging. Are female nominees for judicial positions chosen based on affirmative action? If so, are women on the bench worse judges than men—or do they come with advantages that men lack? This controversy has legs. If Justice Ginsburg is forced to retire this term because of illness, reducing the number of female justices from two to one, there will be a great deal of pressure on President Obama to nominate another female jurist. Or if Justice John Paul Stevens retires, why not three women on the high court? . . . 

The claim that women are worse—or better—than men at judging should be susceptible to empirical investigation. There is no obvious way, however, to measure judicial quality; lawyers dispute endlessly whether cases are rightly or wrongly decided—and, ultimately, a good judge is just a judge who decides cases correctly. Still, we have come up with some indirect measures of judicial quality. These include productivity (how many opinions judges write), influence (how frequently other judges rely on their opinions), and independence (how often judges dissent from opinions written by judges who belong to the same political party). We looked at the performance of hundreds of judges over a number of years and working in different types of courts—state supreme courts, federal trial courts, and federal appellate courts. (Our paper is here.) . . . 

[O]ur basic point is this: The fact that female judges are selected from a shallower pool of talent does not imply that they are worse judges than men. In fact, the evidence suggests that they are at least as good as male judges, perhaps better. When she sat on the 2^nd U.S. Circuit Court of Appeals, Justice Sotomayor ranked among the most cited federal appellate judges in the country. Bring on the women!

Supreme Court Lets Stand Ruling Rejecting Free-Speech Claim for "Choose Life" License Plate in Illinois

LA Times: Illinois can steer clear of abortion debate, Supreme Court rules, by David G. Savage:

A group pushing for the state to issue a 'Choose Life' license plate loses its free-speech claim.

Illinois need not offer "Choose Life" license plates to motorists under a ruling the Supreme Court let stand today.

The justices turned down a free-speech claim from Choose Life Illinois Inc., a group that supports adoption and opposes abortion. It had gathered more than 25,000 signatures from persons who wanted a "Choose Life" plate, but the state refused to issue the specialty plate.

Officials said the state wanted to take no position on the abortion issue.

When the state refused to act, lawyers for Choose Life sued, arguing that the refusal amounted to discrimination against their pro-life message.

Last year, however, the federal appeals court in Chicago upheld the state's decision and ruled the state was free to steer clear of the abortion controversy entirely.

Despite today's setback in the high court, 24 states offer "Choose Life" license plates, and efforts are underway to gain approval in 14 more states.

All Eyes Are On Sotomayor As Supreme Court Begins Its New Term

LA Times (Opinion): Justice Sonia Sotomayor's free-speech tests, by Jonathan Turley:

Supreme Court observers will be watching to see whether the new justice's rulings will depart from the liberal voting record of her predecessor.

The start of the U.S. Supreme Court's fall term is always a much-anticipated event. This year, it is likely to receive more attention than usual, with a new justice being seated and conjecture that another plans to resign.

David H. Souter is no longer on the court, and this will be the first term for his replacement, Justice Sonia Sotomayor. It may be the last term for Justice John Paul Stevens, liberal icon of the court. The growing speculation that Stevens plans to retire next year was fueled by his recent decision not to select a full complement of clerks for 2010 -- a strong signal that he doesn't intend to remain on the bench.

For the most part, however, all eyes will be on Sotomayor. Most of the court handicappers will be watching for early signs of how she might depart from the liberal voting record of her predecessor. Originally a Republican nominee to the trial court (though later put on the appellate court by President Clinton), Sotomayor was suggested as a nominee for President George W. Bush and has a more conservative voting record than Souter. If she votes the way she voted on the appellate court, liberals will lose ground with her selection. . . .

Gun Rights and Abortion Rights

Fox News (Opinion): Guns Are the New Abortion, by Curt Levey:

With an estimated 90 million firearms owners in America and a huge margin of popular support for a right to keep and bear arms, the gun rights community is a potent political force. But until recently, it had little reason to care about judges. That's all changed with the arrival of a new Supreme Court justice and the Obama administration.

As a new Supreme Court term opens today, one issue on the Court’s docket stands out, not only for its legal significance, but also for the role it will play in future High Court confirmation fights. The issue is gun rights, and in several ways, it’s the new abortion. . . .

Supreme Court Begins 2009 Term with High Approval Ratings

Slate Magazine: Spoonfuls of Sugar, by Dahlia Lithwick:

Americans' continued love affair with the John Roberts Court

Next week, the Supreme Court will begin its 2009 term, secure in the knowledge that it remains almost completely misunderstood by the American public. A Gallup poll conducted this month showed the court's current approval rating to be higher than it's been in a decade: As of now, 61 percent of Americans approve of the high court's performance. Last year, that number was slumping at 50 percent.

Fifty percent of Americans currently believe the court is neither too liberal nor too conservative; that's up from 43 percent last year. And the number of Americans who believe the court is too conservative has dropped from 30 percent to 19 percent. . . .

Jamal Greene on the Court's Shift from Privacy to Liberty

Jamal Greene (Columbia University School of Law) has posted The So-Called Right to Privacy on SSRN.  Here is the abstract:

The constitutional right to privacy has been a conservative bugaboo ever since Justice Douglas introduced it into the United States Reports in Griswold v. Connecticut. Reference to the 'so-called' right to privacy has become code for the view that the right is doctrinally recognized but not in fact constitutionally enshrined. This Article argues that the constitutional right to privacy is no more. The two rights most associated historically with the right to privacy are abortion and intimate sexual conduct, yet Gonzales v. Carhart and Lawrence v. Texas made clear that neither of these rights is presently justified by its proponents on the Court as aspects of constitutional privacy. Other rights that might be protected by a constitutional right to privacy, such as the right to refuse medical treatment or the right to assisted suicide, are either justified on liberty grounds or are not constitutionally protected at all. The Court’s move from privacy to liberty as a constitutional basis for the freedom to make fundamental life decisions strengthens the rights themselves by anchoring them to constitutional text in a text-happy era, and represents a victory for Justice Stevens, who has long advocated such a shift.

Justice Sotomayor Casts Her First Supreme Court Vote

LA Times: Sonia Sotomayor casts first Supreme Court vote, supporting a stay of execution, by George G. Savage:

Newly seated Justice Sonia Sotomayor has cast her first recorded vote on the Supreme Court, joining a dissent by three liberal justices to stop a pending execution in Ohio.

The full court turned down the last-minute appeal from lawyers for Jason Getsy late Monday evening by a 5-4 vote.

Getsy, 33 and a convicted hit man, is scheduled to die by lethal injection at 8 a.m. Pacific time today.

In a 1995 murder-for-hire attack, Getsy shot Charles Serafino seven times, though the victim survived. Ann Serafino, his mother, was killed in the shooting.

No one questioned Getsy's guilt, but his lawyers argued he should be spared because other participants in the murder-for-hire plot, including its architect, John Santine, did not receive the death penalty. . . .

Justice Sotomayor Sworn In

NY Times: Sotomayor Sworn In as Supreme Court Justice, by Charlie Savage:

WASHINGTON — Justice Sonia Sotomayor took the judicial oath on Saturday, becoming the first Hispanic and third woman to serve on the Supreme Court in United States history.

At just past 11 a.m., Chief Justice John G. Roberts Jr. administered a pair of oaths to her in two private ceremonies at the Supreme Court building, completing her ascent to a life-tenured position as the nation’s 111th justice, and the first to be nominated by a Democratic president since 1994.

Senate Confirms Sotomayor: 68-31

NY Times: Sotomayor Confirmed by Senate, 68-31, by Charlie Savage:

WASHINGTON — Voting largely along party lines, the Senate on Thursday confirmed Judge Sonia Sotomayor as the 111th justice of the Supreme Court. She will be the first Hispanic and the third woman to serve on the court.

Chief Justice John G. Roberts Jr. was expected to administer the oath of office to Judge Sotomayor, 55, in the next few days, with a formal ceremony likely in September. She succeeds Justice David H. Souter, who retired in June. . . . 

Judge Sotomayor’s confirmation was never in much doubt, given Democrats’ numerical advantage in the Senate. But the final vote — 68 to 31 — represented a partisan divide. No Democrat voted against her, while all but 9 of the chamber’s 40 Republicans did so. Senator Edward M. Kennedy, Democrat of Massachusetts, is ailing and did not vote. . . .

Senate Begins Debate on Sotomayor Confirmation

Daily Women's Health Policy Report: Full Senate To Begin Debate on Sotomayor Tuesday:

The full Senate on Tuesday is set to begin debate on Supreme Court nominee Sonia Sotomayor, who is widely expected to be confirmed by the end of the week, the Los Angeles Times reports (Savage/Oliphant, Los Angeles Times, 8/4).

Six Republicans have announced that they will vote to confirm Sotomayor, while most are aligning with the party base to vote against her confirmation. No Democrats have announced that they will oppose her nomination. At the risk of alienating his state's large Hispanic population, Sen. John McCain (R-Ariz.) on Monday announced that he will oppose Sotomayor's confirmation (AP/USA Today, 8/4). "An excellent resume and an inspiring life story are not enough to quality oneself for a lifetime of service on the Supreme Court," McCain said, adding, "I do not believe she shares my belief in judicial restraint" (Los Angeles Times, 8/4). Sen. Ben Nelson (D-Neb.), an advocate for gun-rights, had been under pressure to vote against her but on Monday said that he supports the nominee and will vote to confirm her. Nelson said that he believes Sotomayor has "a great respect for the law" (AP/USA Today, 8/4).

Today is the anniversary of the Fourteenth Amendment

JURIST: Today in Legal History:

On July 28, 1868, the Fourteenth Amendment to the US Constitution, granting citizenship to former slaves and protecting due process of law and equal protection of laws in the States, was ratified. 



Learn more about the history of the Fourteenth Amendment.

Debate Over Abortion Endures

USA Today: Abortion fight is 'enduring divide', by Joan Biskupic:

WASHINGTON — During confirmation hearings for Supreme Court nominee Sonia Sotomayor, Sen. Tom Coburn, R-Okla., asked whether she believed court rulings on abortion had ended the national controversy.

In a departure from the oblique answers that marked the hearings, Sotomayor paused, then answered bluntly: "No."

The incendiary debate over abortion rights endures and can be jarring, as when abortion opponents interrupted at several points the Senate Judiciary Committee session with Sotomayor. The controversy has boiled up in other ways in the days since then....

Senate Expected to Confirm Sotomayor in August

NY Times: Senate Likely to Vote on Sotomayor in August, by Neil A. Lewis:

WASHINGTON — Judge Sonia Sotomayor completed her testimony before the Senate Judiciary Committee on Thursday, acknowledging regret for having said that a “wise Latina” judge could decide a case better than a white man while defending her role in a case involving New Haven firefighters in which she was reversed by the Supreme Court.

But over her four days in the witness chair, Judge Sotomayor provided Republicans little ammunition with which to block the Senate from approving her elevation to the Supreme Court, where she would become the nation’s first Hispanic justice.

Senior Republican staff aides said in interviews they expected that at least one and perhaps as many as three of the panel’s seven Republicans might vote to approve the Sotomayor nomination and send it to the full Senate, which is expected to confirm her in the first week in August. . . . 

Sotomayor Remains Elusive on Abortion

Wash. Post: Sotomayor Avoids Pointed Queries, by Amy Goldstein, Paul Kane, & Robert Barnes:

Before nominating Sonia Sotomayor to the Supreme Court, President Obama did not ask her about abortion rights or any other "specific legal issue," she testified yesterday as she sidestepped senators' efforts to plumb her views on matters from campaign finance law to the workload of the court she is likely to join.

As she progressed through the third day of her confirmation hearings, with no sign of a major mishap so far that would derail her approval by a heavily Democratic Senate, Sotomayor relaxed -- yet took no chances. She joked openly with members of the Judiciary Committee while increasingly avoiding their questions.

Sotomayor also skirted a series of pointed questions from Cornyn and Sen. Tom Coburn (R-Okla.) about her views on abortion rights. Coburn, one of the Senate's leading abortion opponents and a physician who has delivered hundreds of babies, asked how she would handle a case involving a woman seeking to abort a fetus at 38 weeks after learning the baby had spina bifida.

"I can't answer that question in the abstract because I would have to look at what the state of the state's law was on that question," Sotomayor said. She recited portions of the 1992 ruling in Planned Parenthood v. Casey, which upheld a right to an abortion but allowed some restrictions so long as they do not place an "undue burden" on the woman's rights. "The question is: Is the state regulation regulating what a woman does an undue burden?" she said. . . .

Live Blogging Day 3 of Sotomayor Hearings

The Caucus (NYT): Live Blogging Sotomayor Hearings, Day 3, by Kate Phillips.

Sotomayor: Second Day Summary

Daily Women's Health Policy Report: Sotomayor Calls Roe 'Settled Law', Says Health of Woman Must Be Considered:

During the second day of her Senate Judiciary Committee confirmation hearings, Supreme Court nominee Sonia Sotomayor said she views the 1973 Roe v. Wade decision legalizing abortion in the U.S. as settled law reaffirmed by subsequent Supreme Court rulings, the Washington Post reports (Goldstein et al., Washington Post, 7/15). At Tuesday's hearing, lawmakers pressed Sotomayor on her views regarding abortion rights and Supreme Court precedent, the New York Times reports. She told committee members that the contraception rights case that is the foundation for Roe was "the precedent of the court, so it is settled law." She also said the 1992 ruling in Casey v. Planned Parenthood "reaffirmed the core holding of Roe," adding, "That is the precedent of the court and settled law in terms of the holding of the court" (Savage, New York Times, 7/15). Sotomayor said that "there is a right of privacy" and that the Supreme Court "has found it in various places in the Constitution." She cited the Fourth Amendment protection against unreasonable search and seizure and the 14th Amendment guaranteeing equal protection of the law (AP/Yahoo! News, 7/14).

Sen. Orrin Hatch (R-Utah) asked Sotomayor if she considered the 2007 ruling in Gonzales v. Carhart an example of settled law. In the case, the court voted 5-4 to uphold the Partial-Birth Abortion Ban Act of 2003. The ruling was the first time since Roe that the court upheld an abortion restriction that made no exception for the health of the woman, the Times reports. In her response, Sotomayor said that "[a]ll precedent of the Supreme Court I consider settled law, subject to the deference the doctrine of stare decisis would counsel," although she did not address the health exception component of the Gonzales case.

Sotomayor Questioned on Abortion Law During Confirmation Hearings

 NY Times: Republican Senators Press Sotomayor on Abortion Views, by David Stout:

Judge Sonia Sotomayor refused on Wednesday to be pinned down about her views on abortion rights, a subject she said President Obama never brought up before he nominated her for a Supreme Court seat.

The judge was asked about abortion by two conservative Republicans on the Senate Judiciary Committee, John Cornyn of Texas and Tom Coburn of Oklahoma. Mr. Coburn is one of the Senate’s most outspoken foes of abortion rights...

“Where are we today?” Mr. Coburn asked. “What is the settled law in America about abortion?”

In response, Judge Sotomayor cited recent Supreme Court history. “In Planned Parenthood versus Casey, the court reaffirmed the core holding of Roe versus Wade, that a woman has a constitutional right to terminate her pregnancy in certain circumstances.

“In Casey,” she went on, “the court announced that in reviewing state regulations that may apply to that right, that the court considers whether that regulation has an undue burden on the woman’s constitutional right. That’s my understanding of what the state of the law is.”

But Mr. Coburn was seeking to engage her on a deeper, perhaps more personal level. “Let’s say I’m 38 weeks pregnant and we discover a small spina bifida sac on the lower sacrum, the lower part of the back, on my baby, and I feel like I just can’t handle a child with that,” he said. “Would it be legal in this country to terminate that child’s life?”

The nominee said she could not answer “in the abstract, because I would have to look at what the state of the state’s law was on that question and what the state said with respect to that issue.”

In his opening remarks to the nominee, Mr. Coburn apologized for the several outbursts by anti-abortion protesters since the hearings began. “Anybody who values life like I do and is pro-life recognizes that the way you change minds is not yell at people,” the senator said. “You love them.”

Confirmation Hearings Abundant with Abortion Protestors, Including Jane Roe

Wash. Post: The Scene: Culture Wars Intrude on a Day of Cordiality, by Ann Gerhart:

It was but a blip of perhaps 20 seconds, a hiccup in an orderly, polite proceeding, some shouted words about abortion being wrong.

Heads swiveled toward the back of Room 216 in the Hart Senate Office Building, where Judge Sonia Sotomayor had been sitting at a table alone for hours, pleasantly impassive, waiting her turn to speak....

A group of citizens was being ushered quietly from the room. The public, too, had been taking turns all day, 50 at a time, lining up for free tickets to see democracy at work. On the way out, an older white-haired woman turned to yell about overturning Roe v. Wade, then slipped through the door, where Capitol Hill police promptly arrested her.

She was Norma McCorvey, 61 -- Jane Roe herself....

But the people to whom abortion matters most have a long attention span and are focused on 20 or 30 years down the line. Sotomayor is 55. If confirmed, she is likely to have decades ahead of her on the nation's high court. Her position on abortion isn't publicly known....