Constitutional Law Prof Blog

Franken is Minnesota's US Senator: The Minnesota Supreme Court distinguishes Bush v. Gore

The Minnesota Supreme Court has issued its decision regarding the Franken-Coleman election (from November 2008).  With Coleman's concession, this ends the saga;  Al Franken will be seated, giving the Democratic party a 60 person "super" majority.

The 32 page per curiam opinion (pdf here) was joined by five justices (not participating were two justices, CJ Magnuson, seated in bottom row center of photo below; and G. Barry Anderson;  standing second from right in photo below).   From a constitutional law perspective, perhaps one of the more interesting

aspects is the equal protection argument and how the Minnesota Court construed Bush v. Gore, a case on which Coleman heavily relied.  The Minnesota Supreme Court did not simply conclude that Bush v. Gore involved the unique circumstances of a presidential election, but instead spent several paragraphs distinguishing Bush v. Gore:

Coleman argues that, in Minnesota's 2008 United States Senate election,
different local election jurisdictions treated similarly situated absentee ballots differently
and that the trial court imposed a stricter standard for compliance with absentee voting
requirements than did election officials, and that those differences violate equal
protection under Bush.

The trial court concluded that Bush is distinguishable in several important respects
and, as a result, does not support Coleman‟s equal protection claim.  We agree.  In Bush,
the Supreme Court specifically noted that it was not addressing the question of “whether
local entities, in the exercise of their expertise, may develop different systems for implementing elections.”   Variations in local practices for implementing
absentee voting procedures are, at least in part, the question at issue here.  As previously
noted, the trial court here found that the disparities in application of the statutory
standards on which Coleman relies are the product of local jurisdictions‟ use of different
methods to ensure compliance with the same statutory standards; that jurisdictions
adopted policies they deemed necessary to ensure that absentee voting procedures would
be available to their residents, in accordance with statutory requirements, given the
resources available to them; and that differences in available resources, personnel,
procedures, and technology necessarily affected the procedures used by local election
officials in reviewing absentee ballots.  As we noted previously, Coleman has not
demonstrated that these findings are clearly erroneous.

Additionally, the essence of the equal protection problem addressed in Bush was
that there were no established standards under Florida statutes or provided by the state
supreme court for determining voter intent; as a result, in the recount process each county
(indeed, each recount location within a county) was left to set its own standards for
discerning voter intent.   Here, there were clear statutory standards for acceptance or rejection of absentee ballots, about which all election officials received
common training.  

Finally, the decision to be made by Florida election officials with which the
Supreme Court was concerned in Bush was voter intent—that is, for whom the ballot was
cast—as reflected on ballots already cast in the election.  In Bush, officials conducting the recount were reviewing the face of the ballot itself, creating opportunities for manipulation of the decision for political purposes.  Here, the decision at issue was whether to accept or reject absentee ballot return envelopes before they were opened, meaning that the actual votes on the ballot contained in the return envelope were not known to the election officials applying the standards.  In summary, we conclude that Bush v. Gore is not applicable and does not support Coleman‟s equal protection claim.  

For all of these reasons, we conclude that Coleman has not proven that either
election officials or the trial court violated his right to equal protection.

Opinion at 20-23 (footnotes and citations omitted).



RR

Kennedy remained the "swing" vote in the 2008-2009 Term

Kennedy's reputation as the "swing vote" on the United States Supreme Court is substantiated by his performance during the Term that concluded today.  According to the wonderfully informative "Super Stat Pack" by ScotusBlog, available here, Kennedy was in the majority 92.4% of the time in 79 opinions, and perhaps more importantly, 88.7% of the time in the 53 opinions in divided cases in which there was at least one dissenting vote.  According to ScotusBlog this is an even higher number than Kennedy's "stats" from last Term - 85.5% and 79.2% respectively.

(Just for fun, consider jotting down your own ranking of the Justices before you look at the Scotusblog stats for "frequency in the majority: Second after Kennedy?   Last at 47.2%?).

This doesn't mean that Kennedy authored the most opinions.  Indeed, according to the ScotusBlog "Final Stats," Kennedy ranks last in "Opinion Authorship" at 14 Opinions.

Given these statistics, it might be a good time to turn to a new book, The Tie Goes to Freedom: Justice Anthony M. Kennedy on Liberty, by Helen J. Knowles.  

An informative review of the book is available in Law & Politics Book Review here.  The reviewer, Tobias Gibson, writes:

Knowles uses the Introduction of the book to suggest that Kennedy’s reputation of writing opinions which are “doctrinally weak” does not do justice to the Justice. Instead, the purpose of this book is “to try to identify some of the most prominent and important philosophical and legal threads that are woven into the cloth from which Justice Kennedy’s jurisprudence is cut.”  Knowles starts from the assertion that Kennedy is a “moderate libertarian.” This assertion stems from Kennedy’s avoidance of radical legal positions, coupled with his belief in diverse views and protection of human dignity.

Gibson and Knowles are both political scientists and Gibson recommends the book highly.  However, Gibson provides a good outline of the chapters (as is typical in a short review) so that readers who are law professors have information to decide whether or not the book would add to their own insights. 

RR

Ricci Firefighters Race Discrimination Case: Preliminary Analysis

In a 5-4 decision, with the Court's opinion authored by Kennedy, the majority concludes that the city of New Haven violated Title VII, reversing the Second Circuit. 

Weighing in at 93 pages, the opinion is available as pdf here.

Here is the split amongst the Justices:

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, THOMAS, and ALITO, JJ., joined.  SCALIA, J., filed a concurring opinion.  ALITO, J., filed a concurring opinion, in which SCALIA and THOMAS, JJ., joined. 

GINSBURG, J., filed a dissenting opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined.

The Court's majority opinion avoided the equal protection challenge, but the Court does seem to look to equal protection doctrine for guidance.  The Court's syllabus explains:

The Court has considered cases similar to the present litigation, but in the context of the Fourteenth Amendment’s Equal Protection Clause.  Such cases can provide helpful guidance in this statutory context.  See Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 993.  In those cases, the Court held that certain government actions to remedy past racial discrimination—actions that are themselves based on race—are constitutional only where there is a “strong basis in evidence” that the remedial actions were necessary.  Richmond v. J. A. Croson Co., 488 U. S. 469, 500; see also Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 277. In announcing the strong-basis in-evidence standard, the Wygant plurality recognized the tension between eliminating segregation and discrimination on the one hand and doing away with all governmentally imposed discrimination based on race on the other.  476 U. S., at 277. It reasoned that “[e]videntiary support for the conclusion that remedial action is warranted becomes crucial when the remedial program is challenged in court by nonminority employees.” Ibid.  The same interests are at work in the interplay between Title VII’s disparate-treatment and disparate-impact provisions.

Ginsburg, dissenting, views the importance of the Equal Protection Clause differently:

In construing Title VII, I note preliminarily, equal protection doctrine is of limited utility. The Equal Protection Clause, this Court has held, prohibits only intentional discrimination; it does not have a disparate-impact component. See Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 272 (1979); Washington v. Davis, 426 U. S. 229, 239 (1976). Title VII, in contrast, aims to eliminate all forms of employment discrimination, unintentional as well as deliberate. Until today, cf. ante, at 25; ante, p. 1 (SCALIA, J., concurring), this Court has never questioned the constitutionality of the disparate-impact component of Title VII, and for good reason.

Dissenting Opinion at 21.

The Court's opinion was eagerly anticipated, not only because of the important issue of the intersection between Title VII and the Equal Protection Clause, especially when race discrimination is raised by white plaintiffs, but because Sonia Sotomayor is one of the authors of the opinion below.

As a reminder, the Second Circuit opinion was a per curiam opinion signed by Rosemary S. Pooler, Robert D. Sack and Sonia Sotomayor, and is typically (for per curiam opinions) succinct:

Plaintiffs appeal from a judgment of the United States District Court for the District of Connecticut (Arterton, J.) granting the defendants' motion for summary judgment on all counts.

We affirm, for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. Ricci v. DeStefano, 554 F.Supp.2d 142, 2006 U.S. Dist. LEXIS 73277, 2006 WL 2828419 (D.Conn. Sept. 28, 2006). In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs' expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.

RR

"Preventative Detention Model Act": Framework for Obama?

The likelihood of an Executive Order on "indefinite detention" is being widely discussed.  For example, the Washington Post reported yesterday:

Obama administration officials, fearing a battle with Congress that could stall plans to close the U.S. prison at Guantanamo Bay, are crafting language for an executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely, according to three senior government officials with knowledge of White House deliberations.

Glenn Greenwald at salon.com here has extensive coverage with lots of links and discussion, especially focusing on criticisms of Obama's failure to keep his campaign pledges to be different from Bush.

NPR, however, has reported on a proposal "from two experts outside of government"  that "is already being discussed in the Obama administration."  The proposal is from the Brookings Institution, heralded with this opening salvo: "A consensus is beginning to emerge in the public and political spheres concerning the non-criminal detention of terrorist suspects."  The NPR story, however, has one of the two authors of the report acknowledging that " it will be controversial."

The proposal is definitely worth a look.  Entitled "Designing Detention: A Model Law for Terrorist Incapacitation," and authored by Benjamin Wittes and Colleen A. Peppard, download here, the first 27 pages is an analysis and discussion.  For scholars and policy analysists, this discussion provides an excellent overview of the controversies.

The last 10 pages - - - the Appendix - - -  is actually a model statute (or perhaps Executive Order?).  It provides from some judicial oversight, although a suspension of the rules of evidence during those hearings, and numerous other specifics.  For those teaching this summer, whether in the US or elsewhere, this proposal would make an excellent exam question. 

RR

Report concludes Sotomayor's opinions lack strong ideological bent

The Congressional Research Service- a non-partisan body providing research services to both parties and both houses of Congress - released a 59-page report (available here) on Judge Sonia Sotomayor's judicial rulings, ideology, and methodolgy. 

First, the study attempted to discern any indications of an ideological bent in Judge Sotomayor's cases.   On this issue, the study concluded that while the Judge seemed to favor plaintiffs in some cases, "[o]verall, Judge Sotomayor’s opinions defy easy categorization along ideological lines."    Moreover, on the issue of her approach to the judicial role, the report concluded that the Judge's opinions displayed "adherence to the doctrine of stare decisis," "a meticulous evaluation of the particular facts at issue in a case," "adhere[nce] to the plain meaning of the text" in matters of statutory construction, and an "apparent dislike for situations in which the court oversteps the role called for by the procedural posture of a case."  The remainder of the report catalogs and considers Judge Sotomayor's rulings in a number of areas from the First Amendment to Civil Rights to Search and Seizure issues to Executive Power.  The report then analyzes the Judge's rulings in that area for possible trends.

This report should prove to be interesting to both sides in next month's confirmation hearings.  Watch this space for updates.

NLS

Comparative Constitutional Law & Literature: Robson's Saturday Evening Review

"What is a Constitutional Epic?" Penelope Pether asks in her piece Comparative Constitutional Epics, 21 Law & Literature 16 (2009) and available on ssrn here.  Pether (pictured below) is one of the leading lights of the discipline loosely known as law and literature, but her work is uniquely devoted to constitutional theory and to comparative constitutional doctrine.  In this essay, she considers not only Robert Cover's classic article "Nomos and Narrative," but the rereading by Con Law Prof (and newly named Dean of Yale Law School) Robert Post in which Post discerns:

both Cover’s failure to register that every nomos is jurispathic of others, and his “skeptic[ism] of a jurisgenerative politics” of public reason, he does not perceive that if indeed Cover’sromantic hope is for a heteroglossic republic of nomoi, as some among Cover’s glossators
have held it to be,it is blood kin to his own students’ contemporary civic republicanism. Such is the horizon of the inheritors of the death of law, the faithful of popular Constitutionalism.

Id. at 108. 

She also trenchantly analyzes  - - - as a Constitutional Epic - - - "the massive, three-volume public version of the Report of the Events Relating to Maher Arar, produced by the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar,a Canadian national of Syrian birth who was, with the cooperation of the Canadian authorities, arrested and detained by the United States in New
York while lawfully in transit through Kennedy Airport, and “extraordinarily rendered,” to Syria, where he was imprisoned, tortured, and otherwise mistreated, even though, as the Commissioner reported, 'there is nothing to indicate that Mr. Arar committed an offense or that his activities constitute a threat to the activities of Canada.' "  Id. at 114.  She reads this Report against the United States Supreme Court's opinion in Arar v. Ascroft.  And in the Australian context, she reads Bringing Them Home, the Report of the Australian Human Rights and Opportunity Commission’s National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, in conjunction with the Australia High Court's judgment in Kruger v. Commonwealth (The Stolen Generations case).  In both instances, the "positivist" and narrow interpretations of constitutional law, she argues, are undermined by what she terms the "factions" of the reports.

Pether's discussion of these reports made me a bit less cynical about government reports and made me contemplate the ability of these documents to become "constitutional epics."  As we ponder the Obama Administration's response to what might be broadly named the "torture memos controversies," Pether's arguments are worth considering.  If, as she writes, "constitutional epics" express the range of our constitutional commitments, then surely they are grounds for generating profound insights about constitutional law.

RR

Judge Sotomayor as a Change Agent on the Court?

Shortly after Justice Souter announced his retirement, I opined that if President Obama wanted to change the Court quickly, he should "find a nominee . . . that not only shares Obama's legal views and philosophy, but can also convice Justice Kennedy of the correctness of these positions."  The idea was that since Justice Kennedy is the perennial "swing vote," a person that could influence him would have a great deal of influence on the Court. 

Could Judge Sotomayor be that person?  

Recent media reports have provided information that may be helpful in predicting the impact the nominee will have if confirmed.  McClatchy newspapers posted an article entitled, "Sotomayor's take-no-guff demeanor could alter Court dynamics."  Her colleauge, Judge Guido Calabresi, remarked that Judge Sotomayor is a "'wonderful colleague' who doesn't mince words. He said she had 'in a not insignificant number of cases changed my mind . . . both by charm, but mainly by the force of her legal argument.'"  

Over at Slate, Emily Bazelon began her post by suggesting that Judge Sotomayor's effectiveness will be determined by her ability to influence her more conservative colleagues, particularly Justice Kennedy, to side with her in important votes.  Bazelon chronicles a case - Jocks v. Tavernier - wherein Judge Sotomayor convinced the other judges on the panel to see her point of view and to eventually side with an off-duty police officer.   Bazelon's analysis of the case concludes, "I'm consistently hearing that Sotomayor is forceful and assertive and plays well with her colleagues."

A final article talks about what Judge Sotomayor might bring to the bench as a Latina.  The New York Times' Adam Litpak authored an article about how those in the minority affect the Court's deliberations.  He quotes Justice Scalia as stating that Justice Thurgood Marshall "wouldn’t have to open his mouth to affect the nature of the conference and how seriously the conference would take matters of race.”  Justice O'Connor also stated that Justice Marshall was “constantly pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth.”   Moreover, Professor Mark Tushnet was quoted as saying that Justice O'Connor's very appearance at the Court "affect[ed] the way other justices responded.”

What does this mean for the deliberations that Judge Sotomayor will enter if confirmed? It could mean everything, or it could mean very little.  It could mean everything because if Judge Sotomayor is able to persuade her Supreme Court colleagues in the same manner in which she influenced her peers on the Second Circuit, she will certainly be a force to be reckoned with on First Street. If she brings the same skills from New York, we must assume that she will have a chance to alter the 5-4 dymanic in her favor.   However, her presence could bring very little change as well.  The NYT article also goes on to note that while Justice O'Connor acknowledged Justice Marshall's persuasive abilities, she rarely voted with him in civil rights cases.  Despite the presence of a woman on the Court since 1981, Justice Ginsberg was quoted in the NYT article as feeling at times that her points are not heard until someone else makes them.  

Of course, we won't know the extent of Judge Sotomayor's persusive skills until she is confirmed and has been in conference with the other Justices for at least a term.  But one thing is certain - a new justice will change the dynamic of the Court in some fashion.  The only variables are the extent of the change and the contexts in which it may occur.  

Assuming confirmation, this will be the story to watch over the 2010 term.  As always, we'll keep you posted. 

NLS 

Fourth Circuit Upholds Virginia "partial-birth" abortion ban

In an en banc decision, the Fourth Circuit vacates its earlier panel decision and a district court decision concluding the Virginia state law was unconstitutional.  In Richmond Medical Center for Women [and Dr. William Fitzhigh] v. Herring, decided today, full opinion available as pdf here, the en banc court stated:

We now conclude that insofar as Dr. Fitzhugh mounts a
facial challenge against the Virginia Act, the challenge fails
because
(1) Dr. Fitzhugh’s posited circumstance does not
present a sufficiently frequent circumstance to render the Vir-
ginia Act wholly unconstitutional for all circumstances;
(2)  the Virginia Act’s scienter language, although different from
the Federal Act, nonetheless provides sufficient notice to a
reasonable doctor of what conduct is prohibited by the statute;
and
(3) the provisions for a safe harbor and affirmative
defenses, as well as the requirement of "an overt act," ensure
that the Virginia Act will not create a barrier to, or have a
chilling effect on, a woman’s right to have a standard D&E
or her physician’s ability to undertake that procedure without
fear of criminal liability.

The court also rejected the as-applied challenge because Fitzhugh "has not presented sufficiently concrete circumstances in which the as- applied challenge can be resolved, recognizing that '[t]he Act is open to a proper as-applied challenge in a discrete case,' "  quoting Gonzales v. Carhart, 550 U.S. at 168.

The court's discussion of the facial challenge, citing Marbury v. Madison, is relevant far beyond the reproductive rights context.  Certainly, however, the limitation of facial challenges has been quite vigorous in the abortion context of late.  Note also that the Virginia statute here, entitled the "Partial Birth Infanticide" Act, Va. CodeAnn. § 18.2-71.1(A)-(C), applies "regardless of the duration of pregnancy."

The twenty-five page dissenting opinion by Judge M Blane Michael (pictured left)
argues that the court is departing from Gonzales v. Carhart, "and long- standing precedent explicitly reaffirmed in that case hold that the Constitution protects a woman’s right to choose the standard dilation and evacuation (D&E) procedure employed in the vast majority of pre-viability second trimester abortions. The Virginia Act violates the Constitution because it exposes all doctors who perform the standard D&E to prosecution, conviction, and punishment. The Act does this by imposing criminal liability on any doctor who sets out to perform a standard D&E that by accident becomes an intact D&E." (emphasis in original).



RR

Can the Government Hold "Sexually Dangerous" Persons Beyond Their Prison Term?

The Supreme Court on Monday agreed to hear the government's appeal of a Fourth Circuit decision earlier this year that held that the government lacks authority to hold a "sexually dangerous" person beyond their prison term.

The Fourth Circuit case, U.S. v. Comstock, involved Title III of the Adam Walsh Child Protection Act, 18 U.S.C. Sec. 4248 (or just "Sec. 4248"), which authorizes the Attorney General to place in indefinite civil commitment any individual in federal Bureau of Prison custody that the AG designates as "sexually dangerous."  The Fourth Circuit ruled that Sec. 4248 exceeded congressional authority; I posted on the decision here.  Since then the Eighth Circuit upheld the provision in U.S. v. Tom, creating a circuit split. 

The difference between the Fourth Circuit approach and the Eighth Circuit approach is this:  The Fourth Circuit asked whether Sec. 4248 itself was authorized by the Commerce Clause (along with the Necessary and Proper Clause); but the Eighth Circuit asked whether Sec. 4248 was authorized only by the Necessary and Proper Clause as an appropriate mean to the end of enforcing the underlying conviction (which might be supported by any Article I authority, but most likely the Commerce Clause).  In other words, the Fourth Circuit treated Sec. 4248 as a stand-alone act, an end in itself, based on the fact that Sec. 4248 operates only after an individual has served out the original sentence--i.e., after the BOP has an interest in continued confinement for anything having to do with the original offense.  The Eighth Circuit, in contrast, treated Sec. 4248 as a means to an end--a way to help enforce the underlying act--in the same way that the Court held that involuntary civil commitment helped enforce the underlying indictment (but, importantly, not conviction) in Greenwood v. U.S.

If the Court sees Sec. 4248 as an end in itself (like the Fourth Circuit), Comstock would give the Court an opportunity to refine its Commerce Clause analysis under Lopez, Morrison, and Raich.  But Comstock would be a particularly bad case in which to do this: The government didn't develop a Commerce Clause argument at the Fourth Circuit, and, as a result, the Fourth Circuit didn't have much to say.  (The Fourth Circuit simply seemed bewildered by the government's reliance only on the Necessary and Proper Clause--an argument that sees Sec. 4248 as a means to the end of enforcing the underlying conviction and that better fits with the Eighth Circuit approach.)  Even if the Court adopts this approach, we're therefore unlikely to see any dramatic new developments in the Commerce Clause coming out of this case.

If instead the Court sees Sec. 4248 as a means to an end (like the Eighth Circuit), Comstock would give the Court an opportunity to reassess the relationship between the Commerce Clause (or any Article I power supporting an underlying federal criminal law) and the Necessary and Proper Clause (which supports the related involuntary civil commitment).  The key to this approach may well be Greenwood.  The Court in that case ruled that Congress could authorize involuntary civil commitment for an individual found mentally incompetent to stand trial.  But the civil commitment in Greenwood came before trial, at a point where the BOP still had an interest in the defendant for the underlying charge.  Comstock is different: Comstock's civil commitment came after he served his time, at a point where the BOP no longer had an interest in him for the underlying conviction.  (Note that Comstock's underlying conviction--possession of child pornography--is related to sex and therefore may make it easier for the Court to rule that his civil commitment as a "sexually dangerous" person was an appropriate mean to the end of enforcing the child pornography law.  Under Sec. 4248, this need not have been the case.  Sec. 4248 applies to anyone in BOP custody, whether they're held for a crime related to sex or not.)  The government's claim in Comstock, then, is for a Necessary and Proper Clause that is somewhat broader than that which supported the civil commitment in Greenwood.

If the Court goes this latter route, as seems more likely, watch closely for its ruling and language on the scope of the Necessary and Proper Clause.  If the Court holds that it extends to support Sec. 4248, this could give the government a revitalized tool that could (re-)open up congressional authority in the Commerce Clause and beyond.

SDS

Supreme Court on Voting Rights Act - Northwest Utilities v. Holder: Analysis

The United States Supreme Court has decided  Northwest Austin Municipal Utility District Number One v. Eric Holder, Jr, opinion as pdf here reversing the district judge.  However, the Court, in a 8-1 opinion authored by CJ Roberts does not hold section 5 of the Voting Rights Act unconstitutional (as some had anticipated).   Instead, the Court engaged in statutory interpretation to hold that "all political subdivisions—not only those described in §14(c)(2)—are eligible to file a bailout suit."  (Opinion at 16).

However, in its relatively brief opinion (about 16 pages), the Court had much to say about the Voting Rights Act and the Court's own role.  First, the Court made it clear that while it was "undeniable" that §5 of the Voting Rights Act had produced "historic accomplishments," the section "imposes substantial federalism costs" in terms of federal intervention, especially given that states are not treated equally ("preclearance requirements in one State would be unconstitutional in another").  The Court then stated it was "keenly mindful" of its "institutional role" balancing its respect for Congress as a coequal branch of government with the Court's duty as the bulwark of a limited constitution against legislative encroachments (citing The Federalist). 

Justice Thomas dissenting in part based upon his argument that the Court should have reached the constitutional issue.  The Court's opinion specifically addressed that position with citations to the lower court, the briefs, and oral argument:

The district expressly describes its constitutional challenge to §5 as being “in the alternative” to its statutory argument.  See Brief for Appellant 64 (“[T]he Court should reverse the judgment of the district court and render judgment that the district is entitled to use the bailout procedure or, in the alternative, that §5 cannot be constitutionally applied to the district”).  The district’s counsel confirmed this at oral argument.  See Tr. of Oral Arg. 14 (“[Question:] [D]o you acknowledge that if we find in your favor on the bailout point we need not reach the constitutional point? [Answer:] I do acknowledge that”).

Opinion at 10-11.

In sum, this is a narrow opinion on a statutory basis, not likely to change Voting Rights Act litigation in any substantial manner, and not likely to change the syllabus in constitutional law courses.

RR

Osborne's Deference to the States

The Supreme Court ruled this week in DA's Office v. Osborne that a state prisoner has no Fourteenth Amendment Due Process right to access the state's evidence for DNA testing, even where all the parties agree that the testing could conclusively prove his guilt or innocence and even where he offered to pay for it.  The 5-4 majority opinion, authored by Chief Justice Roberts, said that neither procedural due process nor substantive due process compelled access.

In doing so, the opinion seemed to turn the Court's method of dealing with new claimed, substantive due process rights on its head.  In particular, the Court exactly reversed the role that state legislative judgments play in the Court's recognition of new rights.  Osborne's claimed right did not bubble up from an emerging consensus among the states; instead, it devolved down.

The Court's ruling turned turned in large part on the Court's deference to state legislatures in working these issues out.  Chief Justice Roberts wrote:

The dilemma is how to harness DNA's power to prove innocence without unnecessarily overthrowing the established system of criminal justice.

That task belongs primarily to the legislature. 

Slip Op. at 8.  And according to the Court, they're doing it:

Forty-six States have already enacted statutes dealing specifically with access to DNA evidence. 

Slip Op. at 8-9.  The Court shouldn't interfere with these "serious, thoughtful examinations," by establishing a new right, wrote the Chief Justice, citing Washington v. Glucksberg.

But Washington v. Glucksberg used the emerging state consensus in exactly the opposite way.  In that case, the Court refused to recognize a new claimed, substantive due process "right to assisted suicide" in large part because the states had almost universally criminalized assisted suicide.  Chief Justice Rehnquist wrote,

We begin, as we do in all due-process cases, by examining our Nation's history, legal traditions, and practices.  In almost every State--indeed, in almost every western democracy--it is a crime to assist a suicide.

In that case, the state consensus against the claimed fundamental right drove the Court to deny the fundamental right.  In Osborne, the state consensus in favor of Osborne's claimed fundamental right also drove the Court to deny the fundamental right.  The only thing the cases seem to have in common is the denial of the claimed right.

(The Court in Osborne also looked to whether the claimed right was deeply rooted in our history and traditions--an approach in perfect harmony with Glucksberg.  The Osborne court found that the claimed right at its most specific level of description (a "careful description" of the right, in Glucksberg's language) did not meet this test.  Justice Stevens argued in dissent that a more general description of the claimed right--the interest in the "fundamental liberty of freedom from physical restraint," e.g.--certainly would meet the test.) 

Between Glucksberg and Osborne, those seeking judicial recognition of "new" rights are in a tough spot with regard to the states.  An emerging state consensus against a right (as in Glucksberg) cuts strongly against judicial recognition of the new right.  But on the other hand, an emerging state consensus in favor of a right (as in Osborne) also cuts strongly against judicial recognition of the new right.

It seems that whatever the states are doing with regard to a new or emerging right, this approach would simply allow them to keep doing it, without judicial interference and recognition of that right.  Stated only slightly differently:  States are (and should be) "laboratories of democracy" not only in how they protect interests, but also in how they don't protect them.

This approach was also on display in Judge Easterbrook's recent decision for the Seventh Circuit panel on incorporation of the Second Amendment.  (I posted most recently here.)  He wrote,

But the municipalities can, and do, stress another of the themes in the debate over incorporation of the Bill of Rights: That the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule. . . . Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon.

Slip Op. at 8-9.

SDS

Specter on Judicial Scrutiny of Congressional Fact-Finding (and VRA Reauthorization)

Senator Arlen Specter wrote this week to Judge Sonia Sotomayor to get her views on judicial scrutiny of Congressional fact-finding.  The letter suggests that Specter thinks the Court's increasing scrutiny in cases like U.S. v. Morrison (ruling that Congress exceeded its authority under Section 5 of the Fourteenth Amendment in enacting the Violence Against Women Act) and Alabama v. Garrett (ruling that Congress exceeded its authority under Section 5 in enacting the Title I of the ADA) is inappropriate.

The issue is particularly important now, as the Court sets to rule in Northwest Austin Municipal Utility District v. Holder, the case challenging Congressional reauthorization of the preclearance provision in the Voting Rights Act.  (We most recently covered the case here.)

Senator Specter's letter references the oral argument in that case, quoting Chief Justice Roberts's questions that implied criticism of Congressional fact-finding in support of reauthorization.  And he compared those questions to Chief Justice Roberts's very different answers to questions at his confirmation hearings.  Senator Specter:

The Supreme Court heard oral argument in Northwest Austin Municipal Utility District v. Holder on April 29, 2009, involving the sufficiency of the Congressional record on reauthorizing the Voting Rights Act.  While too much cannot be read into comments by justices at oral argument, Chief Justice Roberts's statements suggested a very different attitude on deference to Congressional fact finding than he expressed at his confirmation hearing.

Senator Specter leaves no doubts in the letter where he comes down on the adequacy of Congressional fact-finding in support of VRA reauthorization:

As a factual basis for the 2007 Voting Rights Act, Congress heard from dozens of witnesses over ten months in 21 different hearings.  Applying the approach from Chief Justice Roberts's confirmation hearing, that would appear to satisfy the "congruence and proportionality standard."

So here are the Senator's questions to Judge Sotomayor:

1. Would you apply the Justice Harlan "rational basis" standard or the "congruence and proportionality standard" [when reviewing Congressional findings in support of legislation under Section 5 of the Fourteenth Amendment]?

2. What are your views on Justice Scalia's characterization that the "congruence and proportionality standard" is a "flabby test" and "an invitation to judicial arbitrariness and policy driven decision making"?

3. Do you agree with Chief Justice Rehnquist's conclusion that the Violence Against Women legislation was unconstitutional because of Congress's "method of reasoning"?

4. Do you agree with the division of constitutional authority between Congress and the Supreme Court articulated by Chief Justice Roberts in his responses [at his confirmation hearings]?

Judge Sotomayor's answers will likely depend on whether the Court rules in the NAMUD case before she has a chance to answer--her hearings are now set to begin on July 13--and, if so, how.

SDS

 

New York state constitutional crisis?

New York's state constitutional crisis is not about Long Island seceding (see below), but about a Legislative logjam.  As the NYT reported yesterday, "A week after Republicans wrested power in the State Senate away from Democrats, their thin majority collapsed on Monday, leaving the chamber in a 31-31 tie with its leadership picture more confused than ever."   Ordinarily, a tie in the Senate would be broken by the Lieutenant Governor; however NY's Lt. Governor, David Paterson, became Governor after Governor Eliot Spitzer resigned after a scandal.

The Democrats filed suit in state supreme court (note that in New York, the highest court is the Court of Appeals), but the judge dismissed the case, relying on separation of powers issues under the state constitution.  (Decision below)

Smith v Espada McNamara Decision

Publish at Scribd 

Decision courtesy of Times-Union in Albany.  For good continuing coverage, see the "Capitol Confidential" blog of the Times-Union.

RR

Secession of Long Island Redux

Could Long Island actually secede from New York? 

Our previous post from May 14 is here.  It seems the Daily Show has caught up with us.  The segment from last night's show (in that typically offensive style) is here: 

The Daily Show With Jon Stewart	Mon - Thurs 11p / 10c
Long Island Wants to Secede
www.thedailyshow.com
Daily Show Full Episodes Political Humor Jason Jones in Iran

RR

Government Seeks Review of Ninth Circuit's State Secrets Ruling

The government filed a petition for reconsideration or rehearing en banc of the Ninth Circuit panel's decision in Mohamed v. Jeppesen Dataplan, Inc., the case against a private company for its alleged role in the CIA's extraordinary rendition program.  The panel rejected the government's claim that the state secrets privilege required dismissal of the entire suit at the pleading stage.  I posted most recently on the case here; my interview with lead counsel for the plaintiff, ACLU attorney Ben Wizner, is here.

The government's petition argued that the panel took an unduly narrow view of the privilege as recognized in Totten v. United States; that case, it wrote, held that "dismissal is appropriate whenever it becomes clear that further proceedings risk disclosure of state secrets," and not only under the narrow facts of Totten, i.e., when a plaintiff seeks to enforce an espionage agreement. 

The government also took issue with the panel's interpretation of United States v. Reynods that the state secrets privilege is an evidentiary privilege that therefore cannot protect against the disclosure of secret information through pleadings.  Under the panel's ruling, the government argued, Jeppesen would have to answer the complaint's allegation that it secretly contracted with the CIA to help conduct the extraordinary rendition program.  Any answer could reveal a state secret, wrote the government, and revealing the information would harm CIA relations with cooperating foreign nations.  (Take a look at the amended complaint yourself.  It is, indeed, quite specific in its allegations about the extraordinary rendition program, but it's also based largely on publicly available information (and it cites its sources).)

Finally, the government highlighted the circuit split, leading with El Masri v. United States, the Fourth Circuit decision affirming the pleading-stage dismissal of all claims against the government for alleged detention and torture by the CIA, thus teeing up its Supreme Court cert. petition should the full Ninth Circuit reject the government's claims.

SDS

DC rejects referendum on recognition of same-sex marriages

The DC Board of Elections and Ethics ruled today that it will not allow a voter referendum reconsidering DC's stance on same-sex marriages.

As the Board's 12 page opinion (available as download here) explained, the referendum seeks to suspend section 3(b) of Act 18-0070, the “Jury and Marriage Amendment Act of 2009,” (“the Act”), which recognizes same-sex marriages validly entered into in another jurisdiction, until this provision has been presented to the registered qualified electors of the District of Columbia for their approval or rejection. 
The Board gives this history of the Act:

The Act’s originating bill, B18-0010 (“the Bill”) was introduced on Friday, January 02, 2009 by D.C. Council Chairman Vincent Gray at the request of Mayor Adrian Fenty.  An Amendment to the Bill, which included the language of section 3(b), was offered by Councilmember Phil Mendelson on April 7, 2009. The Council approved the Bill as amended on its first reading on that date. The Council approved the Bill again on its final reading on Tuesday, May 5, 2009 by a vote of 12-1. The Council transmitted the Bill to Mayor Fenty on Wednesday, May 6, 2009, and the Mayor signed the Bill on the same day.  The resulting Act was transmitted to the U.S. Congress on Monday, May 11, 2009, and is projected to become law on Monday, July 6, 2009.

The D.C. Board of Elections and Ethics explained that it may not accept a referendum measure under several circumstances, including if the "measure authorizes, or would have the effect of authorizing,
discrimination prohibited under Chapter 14 of Title 2" which contains the District of Columbia Human Rights Act, HRA, D.C. Official Code § 2-1401.01 et seq. (2006 Repl.).

The Board concluded that the

Referendum’s Proposers would, in contravention of the HRA, strip same-sex couples of the rights and responsibilities of marriage that they were afforded by virtue of entering into valid marriages elsewhere, and that the Council intends to clearly make available to them here in the District, simply on the basis of their sexual orientation. Because the Referendum would authorize discrimination prohibited by the HRA, it is not a proper subject for referendum, and may not be accepted by the Board.

Opinion at 11.

Thus, the DC Board of Elections and Ethics reaches a very different conclusion than the California Supreme Court in its ruling on the constitutionality of that state's Proposition 8, last discussed here, which was certified by the California Secretary of State.   The DC Board is not basing its rationale on constitutional principles; however, the Board's ruling does implicate the balance between equality principles and direct democracy in the form of a voter referendum.

RR

CFP: Comparative Constitutionalism & National Security

Pace International Law Review 2009-2010 Symposium

Call for Submissions

Pace International Law Review is planning a symposium entitled Comparative Constitutional Law: National Security Across the Globe to be held in November of 2009.  The day-long symposium will feature multiple panelists and guest speakers.  The editors of Pace International Law Review invite proposals for articles, essays and book reviews from scholars, researchers, practitioners, and professionals.  Contributions to be considered for presentation at the symposium and subsequent publication or for publication only.

SUBMISSION INSTRUCTIONS

Please submit proposals of no more than 500 words to [email protected] by June 30, 2009.  All proposals should include the intended author's name, title, institutional affiliation and contact information.  The proposals should address issues pertinent to the interrelationship between national security concerns and constitutional law of a particular nation or nations.   Article proposals that provide a comparative analysis of issues and concerns faced by various nations are preferred.  The proposals should be as thorough as possible and may include suggestions for other panelists who experts in the proposed topic.  

Book review proposals also should include (a) the title and publication date of the book proposed for review; (b) a description of the importance of the book to the general topic; and (c) any other information relevant to the book or proposed review (e.g., the reviewer's expertise or any relationship with the author).  All authors are welcome, but not required, to submit a CV.

We expect to make offers to the selected guest speakers in August, 2009.  We encourage clear, concise, and an accessible proposals for articles, essays and book reviews that will interest lawmakers, attorneys and students.  All proposals will be considered for publication even if not selected for the symposium. Complete manuscripts for work that will not be presented at the symposium will be due by August 31, 2009.

Relevance of the United States Supreme Court: limited to nip and tuck?

How important is the United States Supreme Court?

Democracy: A Journal of Ideas has an interesting review by Eric Lane and Aziz Huq (available here, free subscription required), in which they ultimately conclude that

the Court will nip and tuck, but it won’t go near vital organs. It will trim the reach of the federal government by reading statutes narrowly, but it will not involve the reshaping of the Republic’s core policy commitments.

This does not mean the Supreme Court is irrelevant. It will continue to matter on social issues such as abortion, sexual privacy, and equality issues related to sexual orientation. Its opinions in these matters will be of great consequence to millions of people.

This seems a bit contradictory.  And perhaps their argument regarding the Court's ruling in Heller that there is an individual right to bear arms under the Second Amendment may be a bit premature:

 the ruling was narrowly written, and what seemed to be a landmark opinion has had surprisingly little effect on other gun laws and other governmental regulations of firearms. Indeed, narrowing language in Justice Scalia’s majority opinion in Heller makes it perfectly clear that the Court will not endorse challenges to gun regulations that have broad popular support–even though these laws should be equally vulnerable to constitutional challenge given the majority’s own logic.

But this is a thoughtful review, especially given its brevity, of three books that merit reading this summer:

Lincoln and the Court
by Brian McGinty
Harvard University Press • 2008 • 384 pages • $18.95 (Paperback)

FDR v. the Constitution
by Burt Solomon
Walker & Company • 2009 • 352 pages • $27

The Supreme Court and the American Elite
by Lucas A. Powe, Jr.
Harvard University Press • 2009 • 432 pages • $29.95

RR

Sotomayor, Ricci, and Affirmative Action – Part II – Standing to Speak

As noted in Part I of this post, of all Judge Sonia Sotomayor's legal decisions, the Ricci case has garnered the lion's share of the media and academic attention.  Part I of this post considered the opportunities presented by a national discussion of the issues raised in Ricci.  This part, as promised, will analyze the language that has been used to discuss Judge Sotomayor’s role in the case and her other remarks on issues of race.

The word that has been tossed-about most often in the discussion of Judge Sotomayor's role is "racist" or "reverse racist."  There seem to be four bases for this allegation: First, there is her ruling in the Ricci case which disadvantaged the white firefighters.  Second, her strong idenitifcation as a Latina has led some to opine that she does not possess an "ability to rule fairly without undue influence from her own personal race, gender, or political preferences."  Third, she is a member of the Latino civil rights advocacy group, the "National Council of La Raza."  Fourth, the following comment - "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life," has led some to remark that she is incapable of judging cases involving whites impartially.

The purpose of this post is not to debunk any of these claims.  That has been done quite well elsewhere.  For instance, Dean Kevin Johnson, Feminist Law Professors' Ann Bartow, and Professor Michael Dorf have all explained that when read in context the "wise Latina" quote is not so shocking.  SCOTUS Blog completed a two-part series examining each of Judge Sotomayor's opinions in cases involving race.  The conclusion? 

In sum, in an eleven-year career on the Second Circuit, Judge Sotomayor has participated in roughly 100 panel decisions involving questions of race and has disagreed with her colleagues in those cases (a fair measure of whether she is an outlier) a total of 4 times.  Only one case (Gant) in that entire eleven years actually involved the question whether race discrimination may have occurred.  (In another case (Pappas) she dissented to favor a white bigot.)  She participated in two other panels rejecting district court rulings agreeing with race-based jury-selection claims.  Given that record, it seems absurd to say that Judge Sotomayor allows race to infect her decisionmaking.

If those points have been debunked, what is this post about?  Well, Tom Goldstein of SCOTUS Blog began his study by stating, "It is remarkable how much ink has been spilled on Sonia Sotomayor’s ethnic background rather than her legal background."  For me, this is the intriguing question.  Upon hearing the "wise Latina" comment, many remarked, "Would a white male have been able to make the same remark?"  To me, the question in response is "Would a white male have been grilled as stringently on this issue?"  

In his 1992 book Faces at the Bottom of the Well, Professor Derrick Bell wrote about the "Rules of Racial Standing."  The "Rules" were a series of guidelines for African Americans in public life.  Rule number two reads as follows:

"[There is] a widespread assumption that blacks, unlike whites, cannot be objective on racial issues and will favor their own no matter what . . . Black judges hearing racial cases are eyed suspiciously and sometimes asked to recuse themselves in favor of a white judge."

Professor Bell's rules seem to be unusually prescient in this situation.  Given the tone and tenor of the discussion, it seems the allegations of racism were based on little more than the fact that she is both Latina and a woman.   For contrast, I reviewed the hearing transcripts for Justices Roberts and Alito (available here and here respectively).  While issues of race and affirmative action were mentioned, even a cursory review of the transcripts indicates that race was not a central issue of either of the hearings.  Neither man was pressed very hard to demonstrate that he could be fair to a multitude of people.  The media coverage of their confirmations certainly did not focus on those issues.  So, the question should not be whether the Goldstein report exhonerates Judge Sotoamayor.  The question should be why such a report had to come so early in the process, weeks before the confirmination hearings.

Why should we care about the public treatment of Judge Sotomayor on issues of race?  There are at least three reasons.  First, judicial intergrity is at stake.  If the allegation that Judge Sotomayor had disdain for white litigants were true, that would definately be cause for concern.  However, again, no support has been brought forth on this score other than her ethnicity.  This is unfortunate, as it implies that non-white jurists cannot be fair to white litigants. The necessary corrollary to that line of reasoning is that white judges can only be fair to whites.  Truly, is this the message we want to send - that justice depends upon the color of the judge rather than the content of the case file?  Chief Justice Earl Warren - a white man - sided with African Americans more often than not.  Convesely, the current Court's lone African American - Clarence Thomas - does very little to advance issues of race.  Justices Blackmun, Brennan, and Marshall - all men - helped to advance the rights of women.  Justice Brennan was Catholic, but supported abortion rights in Roe and Webster.  Surely, we trod a dangerous path when we believe we can predict a Justice's vote based on phenotype, religion, or other characteristics which have nothing to do with legal acumen.  We must view these jurists as individuals and let their records speak.  To do otherwise is an unfair attack on the character of a judge.

Second, there is the issue of institutional legitimacy.  While the Executive Branch can help enforce its rulings, the Court depends largely on its institutional legitimacy to convince the public of the rectitude of its decisions.   An attack on a nominee's legal positions is fair game - always.  But an attack based on assumptions regarding a nominee's race, gender, sexual orientation, religion, or nationality - matters that are not subject to change or debate -  should be beyond the pale.   When we make those assumptions we diminish the person, as stated.  But we as we diminish the individual, we also diminish the institution he serves by making it harder to trust the fairness of the institutional output.  In short, it would be unfair to assume, for instance, that a Court comprised of a Catholic majority will be unfair to Protestants, Jews, Muslims, or others.  If such unfounded allegations are leveled, the institution suffers.   

Finally, there is a larger issue of Constitutional law here.  Our president is African American.  Our newest Supreme Court nominee is Latina.  Thus, America is ushering in a new era of leadership.  As this happens at the federal, state, and local levels, will the presumption be that any programs enacted by racial minorities to benefit other racial minorities (and support of such prograns by minority judges) are immediately suspect?  In Croson, Justice O'Connor seemed to suggest as such when she noted that heightened scrutiny was necessary because the majority of the Richmond city council that enacted the plan was African American.  As we enter a new America where people of color occupy more authority positions, many current and former presumptions and assumptions will need to be challenged.  I'm not entirely certain how this will play out, but I do know that it would be unwise to assume at the outset that minorities are only motiviated by race and therefore :1) cannot be fair to those outside of their race; and 2) will favor "their own" to the exclusion of rationality.  To engage in these assumptions would surely validate Professor Bell's Rules. 

In closing, let us be careful of the words and tone we use to discuss nominees for the good of the nominees, the institution, and our nation.

NLS

The Constitutionality of State and Local Laws Targeting Immigrants: Saturday Evening Review

What power do state and local governments have to regulate or enforce laws relating to immigration?  This question is a recurring one, even as the federal government attempts immigration reform.

In her new article, The Constitutionality of State and Local Laws Targeting Immigrants,
available on ssrn here and forthcoming in University of Arkansas Little Rock Law Review, Professor Karla Mari McKanders of University of Tennessee (photo below), argues that

The practice of employing state and municipal laws to exclude immigrants should be discontinued. . . . . If states and localities are permitted to enact immigration laws, our country will have fifty  different iterations of pro- and anti- immigrant laws.  This will also cause state and local governments across the country to compete with each other to see who can pass laws to exclude immigrants from their states, so they will not have to address any issues that come along with migration and integrating immigrants into their communities.  This will essentially result in a downward spiral of states with laws that exclude (a race to the bottom) as states and localities attempt to enact laws which result in immigrants relocating or self-deporting.

McKanders analyzes the various (and contrary) federal decisions, noting that the federal courts take two main positions: (1) when states act pursuant to their police powers, state laws that affect immigration are not per se preempted; and (2) the INA establishes a comprehensive scheme that preempts state and local laws that target or affect immigrants.   She concentrates on  Chicanos Por La Causa, Inc. v. Napolitano,  544 F.3d 976 (9th Cir. 2008), and Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 540-41 (M.D. Pa. 2007), but also discusses the important Eleventh Circuit case Young Apartments, Inc. v. Town of Jupiter, 529 F.3d 1027 (11th Cir. 2008), as well as several others.   

This paper was prepared for a Symposium at University of Arkansas-Little Rock on “cause lawyering,” which the law review defined as   “any activity that seeks to use law-related means or seeks to change law or regulations to achieve greater social justice—both for a particular individual and for disadvantaged groups.”  The Symposium further focused on "immigrants and the Gay, Lesbian, Bisexual, and Transgender communities."

Professor McKanders was doubtlessly invited because of her excellent previous piece, Welcome to Hazleton! 'Illegal' Immigrants Beware: Local Immigration Ordinances and What the Federal Government Must Do About It, available on ssrn here and in Loyola University Chicago Law Journal. If you are teaching or working in this specific area, or on preemption more generally, McKanders' articles are definitely worth a close read.

RR