Constitutional Law Prof Blog

Neglected Supreme Court Justices

Vanderbilt Law Review just published a symposium issue on neglected Supreme Court justices.  Articles cover Samuel Chase (1796-1811), William Johnson (1804-1834), Bushrod Washington (1798-1829), John Catron (1837-1865), John McLean (1829-1861), David Brewer (1889-1910), Rufus Peckham (1895-1909), George Sutherland (1922-1938), Pierce Butler (1922-1939), and Sherman Minton (1949-1956).  Articles are available at the link, above; check it out.

SDS

Notes on the Court, Part I

Today in Slate Magazine, Dalia Lithwick has an article outlining the ever-popular SCOTUS parlor game "Who's Out First?"   As usual, our most likely candidates are Souter, Stevens, and Ginsberg, roughly in that order.  The article is also noteworthy because it describes - in detail - why high drama is the rule, rather than the exception when there is a vacancy on First Street.  Here are some of the best quotes:

[P]erhaps at least some of the growing support for term limits for the justices and proposed mechanisms to remove them if they become infirm have come about because the public feels so completely cut out of this decision-making process and very much at the mercy of the justices' secret plans.

Sandra Day O'Connor was essentially forced off the court in 2005 . . .  Faced with the choice between retiring that spring and potentially serving two more years, O'Connor felt pressed to step down

It's worth remembering that each of these likely suspects for retirement comes from the court's liberal wing. Which means President Obama will replace any of them with a like-minded liberal centrist, and the net effect on the court as a whole will probably be minimal. That might incline any of them to leave sooner rather than later, but not necessarily this June.

It's a truly enlightening article.  Enjoy!

NLS

Scalia Speaks Out

Justice Antonin Scalia last week gave a series of wide-ranging interviews with Peter Robinson of the Hoover Institution.  Audio is available here, thanks to the Federalist Society.  Segment titles include "Why the Constitution 'is not living, but dead,'" "Why originalists have lost so much ground to devotees of a living Constitution," and "Roe v. Wade--and other mistakes of the past 50 years."  Check these out.

SDS

CFP: Supreme Court Preview

CALL FOR PAPERS

The Charleston Law Review, the flagship law review of the Charleston School of Law, invites submissions for its Supreme Court Preview issue. 

Volume II of the law review had a forward by then - Senator Barak Obama (available on the Review's website).

FROM THE LAW REVIEW EDITORS:

We welcome an article or essay addressing a case before the Court in its October 2009 Term, or in the alternative, addressing an aspect of the Court itself such as recent voting trends, case load, an analysis of a particular Justice, or any other topic related to the Supreme Court.

Last year, our Supreme Court Preview included a diverse spectrum of works ranging from articles that examined cases argued in the Court’s October 2008 Term to articles that analyzed current voting trends among the Court.  For example, in Crime Labs and Prison Guards: A Comment on Melendez-Diaz and Its Potential Impact on Capital Sentencing Proceedings, John Blume and Emily Paavola argued that the Court’s decision in Melendez-Diaz v. Massachusetts could resolve conflicting authority on what constitutes testimonial hearsay under Crawford v. Washington and could have a dramatic impact on the criminal justice system, particularly capital sentencing proceedings.  Alternatively, in The Roberts Court and Criminal Justice at the Dawn of the 2008 Term, Professors Christopher E. Smith, Michael A. McCall, and Madhavi M. McCall introduced empirical decision-making patterns from the initial three terms of the Roberts Court in an attempt to ascertain how the Court would likely determine three Fourth Amendment cases in the Court’s October 2008 Term.  The Supreme Court Preview is published to coincide with the opening of the October Term 2009, and we therefore ask that work be submitted no later than August 1, 2009.  Submissions will be reviewed on a rolling basis beginning July 1, 2009.  If you have any questions about our Supreme Court Preview, please contact Ben Garner, Editor in Chief, via email at
bgarner [ at ] charlestonlaw.edu or via telephone at (434) 941-9831.

RR

Chafetz on Executive Contempt of Congress

As is well known by now, the House Judiciary Committee last spring filed a complaint in federal court against former White House Counsel Harriet Miers and then-Chief of Staff Josh Bolton for contempt for failure to comply with Congressional subpoenas in the Committee's investigation into the Bush administration firing of U.S. attorneys.  The district court ruled for the Committee, but the D.C. Circuit stayed the ruling pending appeal and denied the Committee's motion for an expedited appeal.  (Under an agreement announced earlier this month, Miers and Karl Rove will testify under oath, but only to questions on attorney firings, and not to conversations with Bush or with members of the White House Counsel's Office.)

With all the activity, few seemed seriously to delve into this question: Why did the Committee seek to enforce its subpoena in the courts?

This is the question Josh Chafetz (Cornell) takes on in his excellent and thorough review of Congress's contempt power and its power of enforcement in his recently posted piece Executive Branch Contempt of Congress, also forthcoming in the U. Chicago Law Review.  Chafetz argues provocatively that while the Committee certainly has the authority to bring the case in court, other enforcement measures could have been more effective and less power-ceding.

Chafetz starts with a comprehensive historical review of enforcement of legislative privilege, including contempt, that is well worth the read on its own.  (Chafetz is no newcomer to the history of legislative privilege; he's also the author of Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions (Yale).)  Chafetz traces the history of parliamentary privilege from 1290, when the Prior of the Holy Trinity cited the Earl of Cornwall to appear before the Archbishop of Canterbury, to legislative privilege in state legislatures before 1789, to Congressional contempt in the Miers case.  Not all of these involve privilege asserted against an executive (or crown); but Chafetz argues that this doesn't matter: "The case for an inherent contempt authority is, if anything, stronger in the case of executive branch officials than in that of ordinary citizens."  The points are that Congressional contempt--independent of judicial enforcement--has a long and impressive pedigree, and that Parliament, state legislatures, and Congress have used a variety of unilateral enforcement methods.  As Chafetz points out, turning to the courts is simply another method, and a very recent one at that.

Chafetz then argues in the core of his paper that Congress has plenty of more effective alternatives, and that in seeking judicial enforcement Congress actually cedes power to a third, otherwise uninterested branch.  Chafetz explores Congressional arrest and detention, impeachment proceedings, and stalling presidential appointments and executive agendas as unilateral enforcement methods.  "Importantly, none of these options require cooperation from another branch.  None of them constitutes a concession by Congress that it is unable to carry out its constitutional role without help."

But they may require or lead to other bads, perhaps even a constitutional crisis.  (Chafetz's historical examplesthemselves show the serious problems that can come from unilateral enforcement of parliamentary or legislative privilege.)  Just imagine if Congress ordered the arrest Miers or Bolton in last spring's political climate and against the famously unyielding Bush administration; Congress might reasonably have sought to avoid that inevitable clash of armed officers.   And Congress might deem it better policy not to block important appointments while the country is dealing with wars in Iraq and Afghanistan and the myriad attendant issues, or to block legislation when the country is dealing with a financial crisis.  In short, maybe the recent cases of judicial enforcment reflect sound political and policy considerations--that Congress is willing to trade any loss of power in judicial enforcement for the significant bads that might come from any course of unilateral enforcement.  Or maybe Congress was simply trying to gain some judicial leverage in its negotiations with the Bush White House (which, ultimately, may have been successful).

In any event, Chafetz provides answers, which make his piece all the more timely (and certainly not preempted by the early March agreement).  This is a thoughtful and important piece.  I highly recommend it.

SDS

Emergency Economic Stabilization Act of 2008 (EESA) is unconstitutional?

Yes, according to George Will here.

Will provides this hypothetical (worth reading for ConLawProfs contemplating writing exam questions):

Suppose Congress passes the Goodness and Niceness Act. Section 1 outlaws all transactions involving, no matter how tangentially, interstate commerce that do not promote goodness and niceness. Section 2 says the president shall define the statute's meaning with regulations that define and promote goodness and niceness and specify penalties for violations.

His conclusion:  "Surely this would be incompatible with the Vesting Clause."

This is an argument that will probably be surfacing again.

RR

"too much law" & Judicial Bias (among other problems)

The New York Review of Books  April 9 issue has an insightful review by Anthony Lewis 

of Phillip K. Howard's book, Shall We Get Rid of the Lawyers?  Lewis begins with a recollection:

Justice Hugo L. Black once told me that he thought all government departments and agencies should be abolished every five or ten years. Black was a senator from Alabama for ten years and a Supreme Court justice for thirty-four, and he knew just about everything there was to know about how government works. His startling idea—and I think he was serious—was his way of dealing with the encrustations of bureaucracy.  Reading Philip K. Howard's book, I suddenly recalled Justice Black's remark. Not that their concerns are the same, just the sweeping character of their responses. 

Lewis also opines on Caperton v. Massey, which we've most recently blogged here,

The Supreme Court evidently had difficulty deciding whether to hear the case, considering it at several conferences before granting review, and it is easy to understand why. Does the Court want to get into the business of deciding whether a state judge's refusal to recuse himself is a violation of the federal Constitution? How much of a campaign contribution should disqualify a judge from sitting on the contributor's case? If expensive judicial elections are allowable, where do we draw such lines? On the other hand, the claims of elementary justice here seem strong.

Lewis doesn't convince me that the book is worth reading; but I'd say Lewis' review certainly is worth a look.

RR

Voting Rights and African-Americans: Robson's Saturday Evening Review

With Northwest Austin Municipal Utility District v. Holder (considering the application and reauthorization of Section 5 of the Voting Rights Act) scheduled for oral argument before the Court the last day in the term, and most recently blogged here, legal scholarship on voting and race could not be more timely.  Luckily, there are two superb recently published articles that illuminate the subject of voting rights and African-Americans, especially pertinent for ConLawProfs.

The Tyranny of the Minority: Jim Crow and the Counter-Majoritarian Difficulty, 43 Harv. C.R.-C.L. L. Rev. 65 (2008) by Gabriel J. Chin and Randy Wagner opens with this provocative statement:

Modern constitutional law and scholarship rests on a conceptual mistake:
thinking of African Americans as a minority.

Gabriel (Jack) Chin and Randy Wagner argue that although African-Americans may have been a "minority nationally," they were

a majority in the states where their population was most highly
concentrated. In 1880, for example, African Americans were an absolute
majority in Louisiana, Mississippi, and South Carolina; and were over 40%
of the population in Alabama, Florida, Georgia, and Virginia, making Afri-
can Americans the largest single voting bloc in those states.

Further, "allied with Republican whites, African Americans outnumbered conservatives and
earned majority control of the electoral system in many states."  This history of majority political power, they contend, "creates an imperative to rethink segregation and the present condition of African Americans," moving disenfranchisement from one of a "laundry list of indignities," to a central feature of analysis.  The authors offer the tyranny model in which African-Americans

lost their majority power through unconstitutional means.
Thus, the disadvantages they experienced were the result not
of majoritarian indifference or discrimination, but of minority tyranny.

The authors' historical sections (complete with charts) of the Reconstruction and Jim Crow eras is compelling, demonstrating racial discrimination at the local, state, and federal levels as related to disenfranchisement.  The theoretical implications of their argument for judicial review strike at understandings of the so-called "counter-majoritarian difficulty": 

The idea at the core of the counter-majoritarian difficulty, that judicial
review should be restrained lest courts interfere with decisions of majorities,
counseled judicial vigor when those seeking help from the courts were in
fact majorities. If African Americans were a majority or controlling plurality
at the turn of the twentieth century, then judicial decisions failing to defend
their interests could not be the result of an effort, correct or not, to balance
majority rule and minority rights. Instead, anti-African American decisions
sacrificed both the principle of democracy and the letter of the Constitution
in favor of some other principle. The Court knew what it was doing when it
upheld discrimination and disenfranchisement; it consciously upheld laws
passed by minorities, against the will of majorities, who because of their
race had been denied the right to vote provided by the Constitution.
[in 1879] the Court recognized that there were "[s]tates where the colored
people constitute a majority of the entire population.''

Such a recognition, as Chin and Wagner argue, casts Plessy v. Ferguson, as well as other cases, in a very different light.

In her brilliant response, Trampling Whose Rights? Democratic Majority Rule and Racial Minorities: A Response to Chin and Wagner,  43 Harv. C.R.-C.L. L. Rev. 127 (2008), Professor Taunya Lovell Banks essentially agrees with Chin and Wagner, concluding that " litigators should seriously consider using Chin and Wagner's argument and evidence to challenge the invocation of counter-majoritarian concerns in voting rights cases." 

 

Yet Banks extends (and in some ways updates) Chin and Wagner's argument:

While I agree with Chin and Wagner that the counter-majoritarian principle
has been misapplied by the Court in race discrimination cases involving
black Americans . . . Fear of black majority
rule was not the sole reason for black disenfranchisement efforts in the late
nineteenth and early twentieth century. If it had been, disenfranchisement
efforts would have decreased as the percentage of black voters in the states
decreased. Yet, as even Chin and Wagner concede, efforts to disenfranchise
black voters have continued into the twenty-first century in the absence of
black majorities or pluralities in the former states of the confederacy. Thus, I
contend that black disenfranchisement on both a local and national level is
linked to resistance by white racial conservatives to full political equality for
black Americans (and often other non-white racial/ethnic minorities).
Further, Chin and Wagner seem overly optimistic in believing that the
problem with the minority model analysis is simply the Court's unwilling-
ness to recognize the lingering effects of disenfranchised black majorities or
pluralities. Continued resistance among white racial conservatives (whose
interests are currently favored by the federal courts) to full political equal-
ity for black Americans makes it unlikely that "law" will grapple with the
consequences of nineteenth- and early-twentieth-century black disen-
franchisement anytime in the near future . . . . the Court continues
to further the rights of white racial conservative minorities nationally and locally.

Banks turns to several recent cases to prove her point.  Her analysis of Justice O'Connor's use of counter-majoritarian discourse in Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) is the best I've seen; I expect it to be turning up in the notes of every Constitutional Law Casebook in the near future.  She also addresses Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738 (2007) as a springboard to discuss her theories linking resource equality with racial diversity, and linking educational equality and rights with the larger social good.  Additionally, Banks argues that Bush v. Gore, 531 U.S. 98 (2000), should be read as a case about African-American disenfranchisement - - - again, I expect to be seeing the arguments excerpted in the notes of every ConLaw Casebook.

These two articles should be required reading for anyone interested in Northwest Austin Municipal Utility District v. Holder, the United States' deeply problematic history of voting, and judicial theorizing invoking counter-majoritarian difficulties.  

RR

Spanish Court Moves to Investigate U.S. Officials for Torture

The Spanish Audencia Nacional, the Spanish national security court, has taken the first steps toward investigating Bush administration officials for authorizing torture at Guantanamo Bay in violation of the Geneva Conventions and the Convention Against Torture. 

The complaint, forwarded by the prosecutor's office to Baltasar Garzon, triggers an investigation of six former officials, including Alberto Gonzales, John Yoo, William Haynes, Doug Feith, Jay Bybee, and David Addington, for providing the legal framework for violation of the conventions.  According to Harper's, Garzon is "Europe's best known counterterrorism magistrate."  He is perhaps best known as the investigative judge who ordered the arrest of Augusto Pinochet.

While some details of these officials' legal advice remain secret, the general argumentis well known: The techniques did not constitute torture, but in any event the President had inherent executive authority and (alternatively) authority under the AUMF to order treatment of detainees at Guantanamo without regard to limits in U.S. law and international treaties.  (The OLC appears to have backed off some of this--but without specifically retracting it--in later memos.  But we still don't have keyOLC memos to tell the full story.) 

But these arguments (or any others) are extremely unlikely to get full articulation in the Spanish courts:  Even if arrest warrants are issued for these officials, the U.S. would mostcertainly ignore extradition requests. 

SDS

Sanders on Will's Situational Constitutionalism

Chicago attorney Steve Sanders argued yesterday on the American Constitution Society Blog that columnist George Will exhibited his own "situational constitutionalism" in his op-ed earlier this week in the Washington Post.

In that piece, Will romped through recent actions of the political branches--from the tax on AIG bonuses, to TARP, to full representation for D.C. in Congress, to treatment of NAFTA--and concluded that the government is "increasingly anti-constitutional" and reliant upon situational constitutionalism (or politically opportunistic constitutionalism) in justifying its actions.

Sanders responded that Will exhibited his own brand of situational constitutionalism:

What's more curious about Will's attack, though, is that it seems itself to be a bit "situational."  When the issues he cares about are at stake--protecting NAFTA, denying representation to the residents of D.C.--Will calls down wrath against opportunistic politicians whom he says regard the Constitution as merely a "cobweb constraint."  Yet when it comes to attempts by Congress or the states to legislate in other ways that threaten individual rights and constitutional values, Will, like so many of his brethren, seems willing to entrust basic human liberties to the wisdom of these same politicians [and not the judiciary].

Sanders put his finger on why so many of my second-semester Con Law I (structure) students struggle around this time each semester:  In an area with so few definitive "rules"--where everything seems to come down to opportunistic political argument--what are we supposed to learn?  But as Sanders suggests, con law is not mere politics; and we (and our students) might better see this by sorting out situational constitutionalism on both sides of the aisle. 

SDS

U.S. Bombing, Defamation Case Raises Political Questions

The D.C. Circuit in a split decision today affirmed the lower court's dismissal of a Sudanese pharmaceutical manufacturer's Federal Tort Claims Act case against the United States for negligence in bombing its facility in 1998 and for defamation in subsequently claiming that the owner was associatedwith terrorists.  The court ruled that the claims raised nonjusticiable political questions.

The plaintiffs, El-Shifa Pharmaceutical Industries and its owner Idris, claimed that the U.S. bombed their facility in 1998, arguing that the El Shifa plant was a "terrorists' base of operation" and "associated with the bin Laden network."  Clinton administration officials, once they learned that theseinitial justifications were wrong, then portrayed Idris as a friend and supporter of terrorists--a new justification for the bombing.

The defamation claim, growing out of these subsequent statements by Clinton administration officials, raises the more interesting political question issue.  Two judges--Griffith and Henderson--wrote that "[t]he making of such justifications is itself a policy decision that cannot be separated from the conduct of foreign relations and the exercise of the war power that it explains," thus raising political questions.

But Judge Ginsburg in dissent wrote that subsequent justifications had nothing to do with the underlying decision to bomb the facility:

In any event, the Court errs in believing Idres's claim necessarily raises a political question simply because it implicates a strategic decision.  Apparently the Court believes the Constitution grants the Executive the unreviewable discretion to make defamatory statements even if they have nothing to do with the actual justification for a military decision because (or so the Court assumes) every public explanation of a military decision is "offered, in part at least, with strategic . . . objectives in mind."  That proposition is not only novel and frightening, it ignores Supreme Court precedent.

SDS

House Judiciary Leaders Support VRA Reauthorization

A bipartisan group of leaders of the House Judiciary Committee filed an amicus brief today in Northwest Austin Municipal Utility District v. Holder, the case dealing with the application and reauthorization of Section 5 of the Voting Rights Act--the preclearance procedure--now before the Court.  The brief covers the history of the VRA and Congressional findings supporting its extension--good fodder for classes on Congress's authority under the Fourteenth and Fifteenth Amendments.

From the brief:

In 2006, after meticulous and extended consideration, Congress determined that the provisions of Section 5 have not yet "outlived their usefulness."  City of Rome v. United States, 446 U.S. 156, 180 (1980).  In making this determination, Congress acted at the height of its powers in regulating the three intersecting areas of voting, race, and political rights.  Congress's judgment is therefore entitled to substantial deference from this Court.  Accordingly, as the District Court properly held, Congress's decision to extend the VRA passes muster under any constitutional test, whether rationality review under Katzenbach or the "congruence and proportionality" test in City of Boerne.

We've posted on the case here, here, here, and here.

SDS

O'Connor, Ginsburg & Feminism

More on O'Connor's feminism can be found referenced in Julie Graves Krishnaswami, Justice Sandra Day O'Connor: A Selected Annotated Bibliography, 57 Cath. U. L. Rev. 1099 (2008). 

In her section, “Equality and Feminism,” Krishnaswami lists and describes the following articles:

Sandra Day O'Connor, The Legal Status of Women: The Journey Toward Equality, 15 L.J. & Religion 29 (2000-2001). In these remarks on the legal and social status of women, Justice O'Connor begins by sketching the development of women's rights in the United States. She remarks that “the path taken by American women can offer useful insight to the international observer,” although neither the Constitution nor the Bill of Rights expressly provided women with any rights. Id. at 29-30. Juxtaposing the emergence of women's rights in the United States, Justice O'Connor highlights how international agreements and treaties such as the Charter of the United Nations, the Universal Declaration of Human Rights, and the Convention on the Elimination of All Forms of Discrimination Against Women, have served to make women's rights synonymous with human rights. Id. at 33-35. She offers three lessons to women throughout the world from the American experience of the development of women's rights: (1) judicial or legislative change is more likely to be successful if preceded by public opinion; (2) in addition to democratic institutions and documents ensuring equality, all women must participate in political life; and (3) substantial change requires that people transcend their differences. Id. at 35. Finally, Justice O'Connor recognizes Tunisia as a leader among Arab, North African, and Middle Eastern nations in securing women's rights. Id. at 36.

Sandra Day O'Connor, The Supreme Court and the Family, 3 U. Pa. J. Const. L. 573 (2001). This is a transcript of a short talk given by Justice O'Connor as part of the University of Pennsylvania's Law School sesquicentennial celebration and Family Law Symposium. After observing that the family is “at the heart of ... American law,” Justice O'Connor discusses the challenges posed by the development of family law jurisprudence. Id. at 573-74. She observes that the Supreme Court is merely “one voice” in the development of the same. Id. at 574. Further, she argues that because family cases involve the “intertwined” rights of individuals, the  application of due process jurisprudence may not be the most appropriate avenue for resolving these disputes. Id. at 575-76. Justice O'Connor discusses three Supreme Court cases to illustrate her point: Troxel v. Granville, Moore v. City of East Cleveland, and Santosky v. Kramer.

 Sandra Day O'Connor, The History of the Women's Suffrage Movement, 49 Vand. L. Rev. 657 (1996). At the beginning of this article, which was originally delivered as a speech commemorating the 75th anniversary of the Nineteenth Amendment, Justice O'Connor offers “a flavor” of the battle waged by women for the right to vote. She continues to posit, “what was it all for?” Id. at 668. To answer this query, Justice O'Connor discusses the effect of women on elections and politics and observes that women's votes reflect individualism rather than the vote of their husbands or other women. Id. at 669-70. In discussing the advances that American women have made, Justice O'Connor's tone is positive, even as she observes that this progress has been “fitful.” Id. at 670.

Sandra Day O'Connor, Testing Government Action: The Promise of Federalism, in Public Values in Constitutional Law 35 (Stephen E. Gottlieb ed., 1993). This text is a compilation of papers presented at a conference hosted by Albany Law School on September 26-28, 1991, focusing on the concept of compelling government interest.

Sandra Day O'Connor, Foreword, First Women: The Contribution of American Women to the Law, 28 Val. U. L. Rev. xiii (1994). This short piece highlights some of the first women to make significant contributions to the legal profession. Justice O'Connor discusses the contributions of Myra Bradwell, Antoinette Dakin Leach, Clara Shortridge Foltz, and Crystal Eastman.

Sandra Day O'Connor, Portia's Progress, 66 N.Y.U. L. Rev. 1546 (1991). Marking the hundred-year anniversary of the admission of women into New York University School of Law, Justice O'Connor begins by highlighting the advances of women in the legal profession, tracking her own experience from being offered a position as a legal secretary after graduating from law school to serving as a U.S. Supreme Court Justice. She provides examples and discusses her present ideas about gender differences, noting that contemporary ideas about gender differences are eerily similar to past gender stereotypes and rationales invoked to keep women out of the public sphere. Id. at 1549-53. To be sure, Justice O'Connor admits that women bear the burden of childrearing and housekeeping to a greater extent then men and again cites her own experience of resuming her career in earnest only after raising children. Therein lies the dilemma for Justice O'Connor and the crux of the article: the Court's treatment of pregnancy, which she outlines succinctly. To conclude, Justice O'Connor remarks,

[w]omen do have the gift of bearing children, a gift that needs to be accommodated in the working world. However, in allowing for this difference, we must always remember that we risk a return to the myth of the “True Woman” that blocked the career paths of many generations of women.

Id. at 1557.

Of course, O’Connor’s scholarly writings on feminism and gender are substantially fewer than those of Justice Ginsburg as Sarah Valentine, in Ruth Bader Ginsburg: An Annotated Bibliography, 7 N.Y. City L. Rev. 391 (2004), documents.  In the section “Works on Sex Discrimination and Ginsburg's Litigation to Achieve Recognition of Gender Equality,” Valentine discusses Ginsburg’s co-authored Casebook:

Kenneth M. Davidson, Ruth B. Ginsburg & Herman H. Kay, Text, Cases and Materials on Sex-Based Discrimination (1974). In this casebook intended for use in law school classrooms, Ginsburg authored three chapters, entitled “Constitutional Aspects,” “Educational Opportunity,” and “Comparative Side-Glances,” which include materials from the United Nations and foreign nations.

The Bibliography goes on to list numerous articles written during this period.  One favorite is  All about the E.R.A. in Cosmopolitan, Nov. 1979, in which Ginsburg writes, “We do not regard men as the ‘enemy,’ of course. Most of us are very fond of them . . .” which Valentine suggests is “a somewhat amusing reminder of the sorts of stereotypes supporters of the E.R.A. faced in 1979.”   Most of the pieces are more substantial, including Some Thoughts on Benign Classification in the Context of Sex, 10 Conn. L. Rev. 813 (1978) and Constitutional Adjudication in the United States as a Means of Advancing the Equal Stature of Men and Women Under the Law, 26 Hofstra L. Rev. 263 (1997). Additionally, the Bibliography lists works about Ginsburg, many of which focus on her gender equality work, on and off the Court.

Comparisons of O’Connor and Ginsburg, including their ideas of gender equality and feminism, are inevitable given their status as the only two women to serve on the United States Supreme Court in its history.  These two Bibliographies provide some evidence on which to make such comparisons  - - - I think bibliographies can be a great way to start (to jump-start!) one's scholarly research and to provide to students for their own class papers or law review pieces.   But additional Bibliographies on the several additional women Supreme Court Justices to be appointed for the next vacancies would be a welcome addition. 

Happy Women’s History Month!

RR

Justice O'Connor on Women's Rights

Justice O'Connor participated in an interview with the New York Times to promote her new website for children.  Though she declines to call herself a feminist, take note of what she does say:

 Do you call yourself a feminist?

I never did. I care very much about women and their progress. I didn’t go march in the streets, but when I was in the Arizona Legislature, one of the things that I did was to examine every single statute in the state of Arizona to pick out the ones that discriminated against women and get them changed.

So do you call yourself a feminist today?

I don’t call myself that.

Is there a label you prefer?

A fair judge and a hard worker.

(She also had some very nice things to say about Justice Ginsberg.)   While Justice O'Connor may not be thought of as a "feminist" and rejects that label, a parsing of her opinions in Ngyuen v. INS and the main portion of Planned Parenthood v. Casey - which essentially saved Roe - say enough about her judicial philosophy in this regard.

NLS

White House to Release Details of Enhanced Interrogation Techniques

The White House is moving to declassify and release three internal memos that set out the Bush administration's legal justification for its enhanced interrogation techniques (including waterboarding) used against high value detainees, report Michael Isikoff and Mark Hosenball in Newsweek.  (Thanks to reader and student Jerzy Banasiak for the tip.)

The move comes in the wake of last week's account in the New York Review of Books of a secret report by the International Committee of the Red Cross quoting detainees on their treatment.  That account sparked renewed debate over torture and criminal charges against Bush administration officials. 

According to Isikoff and Hosenball, there's some dispute about how much and when Congress knew about the techniques. 

I'll post when the memos are released.

SDS

Winkler on Heller's Contradictions

Adam Winkler (UCLA) recently posted his smart and delightfully entertaining piece Heller's Catch-22on ssrn.  The article is also forthcoming in the UCLA Law Review.  This is clever, insightful, and important beyond the Second Amendment--a very satisfying read.  I highly recommend it.

Winkler's thesis (as his title suggests) is that last term's Second Amendment case, D.C. v. Heller, contains the same types of contradictions, inconsistencies, and in some cases just plain silliness as Joseph Heller's classic, Catch-22.

(Let me stop here for just a minute--a footnote to the last sentence, if our software would permit it--to address what some might see as an all-too-clever (or even too cute) play on Heller (and Heller).  If you're like me, this kind of thing has a ton of potential to distract from an otherwise interesting article.  But not here.  Winkler plays off Catch-22 without overusing it; the article is most definitely about Heller, not Heller.  But more important: catch-22 (the idea, not the book; or, rather, the idea from the book) isWinkler's thesis.  And anyway Heller makes the article fun.)

Winkler starts with the contradictions in public policy and in the public debates.  Here's a sample:

In almost every state, one can obtain a permit to carry a concealed weapon--except where one cannot.  In many states, local sheriffs or chiefs of police have broad discretion over who may receive a permit and, depending on the city or county, no permits may be issued.  For example, in Torrance, California, one of the largest cities in Los Angeles County, one can apply for a permit and, as required by state law, receive a permit application from the city.  But the police chiefs include in the mailing a statement of their longstanding policy to refuse all application request.  Please apply, but no applications accepted.

These examples are more than a mere warm-up for the reader (though they surely are that, what with Winkler's talent for laying plain the contradictions in the gun debates).  Winkler uses these to show how our often conflicting positions on gun-rights/gun-control manifest themselves in inconsistent policies: Our gun-rights interests allow for concealed weapons permits, but our gun-control interests lead to the routine rejection of applications.  We're fundamentally torn about gun-rights/gun-control, and our policy shows it.

Winkler argues that we therefore shouldn't besurprised when the Supreme Court is equally torn.  And it showed it too, in Heller.  A "particularly striking inconsistency" of that opinion is the majority's claim to use originalism.  "Hailed as 'a triumph of originalism,' Justice Scalia's majority opinion actually embodies a living, evolving understanding of the right to bear arms."  Here's an example:

Consider how Justice Scalia's opinion addresses D.C.'s ban on handguns.  An originalist would look to historical sources to determine whether those who ratified the Constitution thought a ban on a particular type of weapon was contrary to the right to keep and bear arms.  But Scalia's opinion doesn't do this.  Handguns are protected, according to the opinion, because they are "'the most preferred firearm in the nation'" to keep for self-defense. . . . In place of the rock-hard original meaning of the Second Amendment, Scalia looks to the fickle dynamics of the contemporary consumer choices.

And another:

Heller also strays from originalism in what is, for practical purposes, the most important part of the opinion.  In a paragraph near the end of the opinion, the Court lists a number of "longstanding prohibitions" on guns that remain good law . . . .  The vast majority of gun control laws fit within these categories.  So while forcefully declaring an individual right to keep and bear arms, the Court suggests that nearly all gun control laws currently on the books are constitutionally permissible.

This latter example--the "Laundry List" of constitutional restrictions--led lower courts to uphold 75 restrictions and overturn none in the cases that have come down since Heller.  So here's another contradiction: Lower courts, which might otherwise have used originalism to overturn some of these restrictions, use the "living constitutional" Laundry List to uphold them.  For all of Heller's hype, its primary contradiction has resulted in no change to the Second Amendment.

And here's the final twist: "Because of its failings, Heller is more likely to have a salutary effect on the gun debate in America by improving gun policies in the future."  Why?  The living constitutional approach--and particularly the Laundry List--has provided guidance to lower courts, and disarmament--the "obsession of both gun lovers and gun haters"--is off the table.  Federal courts will be a new voice--and a reasonable one--in the gun debates, and Heller's Catch-22 is to thank.

SDS

Uighurs File for Contempt

Huzaifa Parhat and the Chinese Muslims (the Uighurs) detained at Guantanamo Bay filed a motionFriday in the D.C. Circuit to hold Secretary of Defense Gates in contempt for failing to comply with that court's June 20, 2008, order to "release Parhat, to transfer him, or to expeditiously convene a new Combatant Status Review Tribunal to consider evidence submitted in a manner consistent with the court's opinion."  Many thanks to Lyle Denniston at SCOTUSblog for breaking the story and posting the motion.

Lawyers for Parhat argued in their motion that the administration failed to release him, failed to transfer him, and failed to convene a new CSRT.  The problem, as I've noted in previous posts on a related case, is that the administration no longer considers Parhat and similarly situated Uighurs "enemy combatants" (or otherwise detainable under President Obama's new definition of detainble individuals), and therefore the administration won't convene a new CSRT.  But it won't release them, either: No other country will take them, and they've been considered too dangerous to be released into the U.S.  (The Bush administration argued that they were too dangerous to release into the U.S.  The Obama administration hasn't to my knowledge made this same argument, but (quite obviously) hasn't yet worked out what to do with them, either.)  It seems highly unlikely that they mightbe transfered to the regular federal criminal system--nobody's accused them of any crime, and both Bush's and Obama's Justice Departments have had plenty of time to consider charges.

In short, they're stuck in legal limbo at Guantanamo. 

This new motion puts new pressure on the administration to do something with them.  And it seems the only thing that the administration could reasonably do is to release them into the U.S.  This may be politically unpalatable, and it may be dangerous.  (The Bush administration argued that the Uighurs posed a threat to the U.S. because they were angry that we illegally detained them so long.  This seems plausible, even if the argument is perverse.)

(Note that this contempt motion is based upon the D.C. Circuit's June 2008 order, which gave the administration three options, one of which was "release."  Compare D.C. District Judge Urbina's order from last fall, which required the administration to release the Uighurs into the United States.  The D.C. Circuit overturned Judge Urbina's order on separation-of-powers grounds just last month.  More on that here.)

SDS

Detainees Push Back on Administration Detention Authority

Lawyers for a group of detainees yesterday filed a Replyto the administration's definition of detainable individuals under the Authorization for Use of Military Force and international law.  Many thanks to Lyle Denniston at SCOTUSblog for the tip and for posting the Reply.

The administration filed its Memo last Friday, March 13, "refining" its position on detainable individuals.  (My original post is here.)  In that Memo, the administration claimed authority to detain individuals under the AUMF and international law--and notably not under inherent Article II authority--but defined detainable individuals in almost precisely the same terms as the Bush administration used to define "enemy combatant":

The President has authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks.  The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al-Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.

The administration claimed authority to detain individuals who meet this definition based on the AUMF and international law, but the latter adjusted somewhat for the "novel type of armed conflict against armed groups such as al-Qaida and the Taliban."  The administration meant, of course, that al-Qaida and the Taliban are not states, and that the effort against them is not a conventional war.  The administration argued that "[p]rinciples derived from law-of-war rules governing international armed conflicts, therefore, must inform the interpretation of the detention authority Congress has authorized for the current armed conflict" and that "[t]he President also has the authority under the AUMF to detain in this armed conflict those persons whose relationship to al-Qaida or the Taliban would, in appropriately analogous circumstances in a traditional international armed conflict, render them detainable."

This adjustment--relying upon the "principles derived from law-of-war rules"--is at the heart of petitioners' objections.  Petitioners argue that the administration's definition exceeds its authority under the AUMF and international law, because it permits detention where international law would not.  (Petitioners argue that the AUMF says nothing about detention, but that the Hamdi plurality ruled that detention under the laws of war was implicit in the AUMF.  Moreover, Hamdi and Hamdanboth gave narrow interpretations to the AUMF, holding the executive to existing law of war.)  Thus petitioners argue that the law of war allows detention only for members of state armed forces (based merely on their status--their membership in a state armed force) and non-member "unlawful combatants" (based on their conduct--their active and direct participation in hostilities).  But the administration's definition allows the President to detain unlawful combatants merely because of their status, not because of their conduct.  This mix-and-match of detention rules under the law of war amounts to a rewrite of the law of war and is outside the President's authority under the AUMF.

The court's decision will turn on just how much leeway it's willing to give the President under the AUMF and international law and whether the President's proposed definition--based on "principles derived from law-of-war rules"--is close enough to detention rules under international law.  We'll keep you posted.

SDS

Bill of Attainder - Saturday Evening Review

Article I section 9 of the Constitution (not the First Amendment as some seem to believe) provides: “No bill of Attainder or ex post facto Law shall be passed.”

Given all the discussion of bills of attainder recently in connection with Congressional attempts to tax AIG bonuses, this Saturday evening I turned to Mark Strasser's article, Ex Post Facto Laws, Bills Of Attainder, And The Definition Of Punishment: On DOMA, The Hawai'i Amendment, And Federal Constitutional Constraints, 48 Syracuse L. Rev. 227 (1998). 

Strasser helpfully discusses the historical context.  In Great Britain, “Parliament would pass statutes in which one or more specific individuals were sentenced to death for allegedly having plotted against the government.”  Bills of Pains and Penalties included lesser punishments such  “imprisonment, banishment, and the punitive confiscation of property by the sovereign.”   Colonial governments passed both types of bills, also adding a third type: “a legislative enactment barring designated individuals or groups from participation in specified employments or vocations,”  often imposed “against those legislatively branded as disloyal.”   Strasser convincingly argues that judicial interpretations of the bill of attainder clause prohibit all three types of legislation.

He then mounts an argument that DOMA – the Defense of Marriage Act – is unconstitutional as a bill of attainder.  He contends that if bills of attainder can be defined as specifically identifying “persons or groups  who will be deprived of a right as a kind of punishment,”  then DOMA’s denial of tax and other benefits to same-sex couples  is a kind of punishment based on disapproval for the actions of same-sex couples, i.e., their homosexuality.

Strasser argues:

The refusal to extend federal recognition to same-sex marriages might seem to be motivated by a legitimate reason, namely, saving money.  However, as Justice Stevens pointed out in his Bell dissent, legitimate reasons can be offered in at attempt to justify patently unconstitutional measures. If Congress were really interested in saving money, it is surprising that the only valid marriages which it would choose not to recognize for federal purposes would be those involving same-sex partners, since there is no reason to think that such marriages would be more of a drain on the Treasury than other marriages. A more plausible reason is that the members of Congress and many of their constituents do not approve of such marriages and do not wish to have tax dollars used to support them.  Yet, it is simply a misunderstanding of the Constitution to assume that Congress can extend or withdraw tax benefits as it sees fit . . . . many members of Congress recognized that DOMA was “a mean-spirited form of . . . legislative gay-bashing.” . . . . Ironically, by so clearly pandering to their constituents, many members of Congress made their punitive intent plain and made even more clear that DOMA implicates Bill of Attainder protections.

Strasser’s decade-old argument regarding DOMA does put the AIG taxing scheme in a new light, although not necessarily an unconstitutional light.  DOMA, of course, has handily survived constitutional attacks.

RR

The Teaching Assistant

Hello!  As always, we will cover a number of stories.  This week's installment will take us through a varied collection of stories.

Equal Protection:

The NAACP has filed a suit against a number of mortgage lenders alleging that they deliberated targeted African Americans for subprime mortgages.  In a related story, NPR aired a story (audio only) about how the recession is having a particularly negative effect on racial minorities.

On LGBT issues, President Obama reversed an edict of of the prior administration by endorsing the United Nations' declaration calling for the decriminalization of homosexuality. 

Fundamental Rights:

The Illinois State Legislature has voted a bill out of committee that wil prohibit any state actor froml, inter alia, "deny[ing] or interfer[ing] with a pregnant woman's right to terminate a pregnancy: (i) prior to the viability of the fetus or (ii) when the termination of pregnancy is necessary to protect the life or health of the pregnant woman."  The law further requires that all Illinois public schools " shall offer medically accurate, age appropriate, comprehensive sexual health education."   

The ACLU has a sobering report about the reproductive rights of women held in ICE custody.  The problem is that female detainees are not made aware of their rights, and therefore do not request reproductive health services.  According to the report, "Basic services and options related to reproductive health, including emergency contraception, prenatal care, post-partum care, and abortion, are . . . available to some detainees, at some facilities, under some circumstances, if you know who, and how, to ask."

Appointments Clause:

The Blog of Legal Times has a great story abouta challenge to the Copyright Royalty Board.   The merits of the case may be more interesting to IP profs, but the Con Law question is whether three of the judges on the Copyright Royalty Board have been duly appointed under the Constitution.   The judges were appointed by the Librarian of Congress, so the issue turns on whether the Librarian is a "Department Head" for Article II purposes.   Great story to prove to your students that they should pay close attention to even the structural issues in Con Law. 

That's it for this week.  See you next time!

NLS