Friday, July 31, 2009

Ninth Circuit to Rehear Second Amendment Incorporation Case En Banc

The Ninth Circuit earlier this week voted to rehear en banc Nordyke v. King, the panel decision ruling that the Second Amendment is incorporated against the states.  The Ninth Circuit order states that "[t]he three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit."

The panel opinion in Nordyke created a circuit split on Second Amendment incorporation.  The Second and Seventh Circuits ruled that the Second Amendment was not incorporated against the states; the Ninth Circuit panel opinion ruled that it was.

The en banc rehearing would resolve the split, if the full Ninth Circuit agreed with the Second and Seventh Circuits that the Second Amendment is not incorporated.

But this wouldn't necessarily mean that the Supreme Court would be any less interest in the case.  The Supreme Court left the incorporation question open in D.C. v. Heller, and it has been a hot legal and political issue since (making an appearance most recently in the Sotomayor nomination hearings and debates).

And there's still the question of how to incorporate.  No circuit has ruled that the Second Amendment is incorporated via the Privileges or Immunities Clause--the Ninth Circuit ruled that it is incorporated via the Due Process Clause--but the Privileges or Immunities Clause has received some attention and argument by paties or amici in each of the three cases.  These cases offer the Supreme Court an opportunity to straighten out its incorporation doctrine--another reason the Court may take an interest, irrespective of what the full Ninth Circuit does.

All this is speculation at this point, of course.  But the Ninth Circuit's vote to review is a sure signal that the full circuit is unhappy with at least some aspect of the panel's decision.

I've posted most recently on Second Amendment incorporation and related issues here, here, here, and here.


July 31, 2009 in Due Process (Substantive), Federalism, Fourteenth Amendment, Fundamental Rights, News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Thursday, July 30, 2009

Jawad to be Released from Guantanamo

Two weeks after Judge Huvelle (D.D.C.) called the government's treatment of detainee Jawad's case an "outrage," and two days after the government informed the court that it would no longer treat Jawad as a detainable individual, Judge Huvelle today ordered Jawad released from Guantanamo.

Given the apparent dearth of evidence in the case and the appalling history (described by Judge Huvelle in the first link above), the government's position and the court's ruling don't tell us much about the larger issue of detention at Guantanamo, the government's position in detainees' habeas cases, or the courts' tolerances for continued detention in the absence of evidence supporting the new detention standard set earlier this year by the court.  The case tells us only that when pressed on habeas the government will not continue to insist that it can detain without evidence that would stand up on habeas review. 

Judge Huvelle also ordered the government to submit to Congress information about the case prior to releasing Jawad, pursuant to Section 14103(e) of the Supplemental Appropriations Act, Pub. L. no. 111-32.  That provision, found on the very last page of the Act, requires the administration to report a detainee's name, the transfer country, assessment of the detainee's security risk, and the terms of the agreement with the transfer country.  (Interestingly, President Obama did not object to this and related portions of the Act when he signed it, although he did object on constitutional grounds to portions of the Act directing his position with regard to the World Bank and the IMF.)

Judge Huvelle signalled that she'll keep her eye on the government: the last part of the order requires the government to file a status report by August 24 regarding Jawad's transfer.


July 30, 2009 in Executive Authority, News, Recent Cases, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 28, 2009

Senate Judiciary Committee Endorses Sotomayor

The Senate Judiciary Committee today voted 13 to 6 to endorse President Obama's nomination of Judge Sotomayor to serve on the Supreme Court.  The Committee web-site is here; the NYT reports here.

All Committee Democrats and Senator Lindsey Graham (R-SC) voted in favor.  The Committee's six other Republicans voted against.

There were no surprises in the members' statements on the vote; they closely tracked the statements and arguments we've seen throughout the process.  Those favoring Judge Sotomayor's nomination cited her restraint and impartiality; Republicans opposing her cited her judicial activism and support for liberal and pro-government positions. 


July 28, 2009 in News | Permalink | Comments (0) | TrackBack (0)

Monday, July 27, 2009

Group Lacks Standing to Sue SECDEF in Solomon Amendment Case

A three-judge panel of the D.C. Circuit ruled last Friday that Young America's Foundation (or "YAF"), a group "committed to ensuring that young Americans understand and are inspired by . . . the importance of a strong national defense," lacked standing to sue to compel the Secretary of Defense to withhold funds from the University of California Santa Cruz under the Solomon Amendment.  YAF argued that protesters at UCSC prevented or disrupted military recruiting on campus.

The panel held that YAF failed to allege redressability; it wrote,

YAF's task was to allege facts sufficient to show it is likely the Secretary's withholding or threatening to withhold federal funds would enable YAF's members to meet with military recruiters at on-campus job fairs. . . .  This it has not done. . . .

[T]he Solomon Amendment leaves the University "a choice: Either allow military recruiters the same access to students afforded any other recruiter or forgo certain federal funds."  Rumsfeld v. Forum for Academic & Institutional Rights, Inc.  Based solely upon its allegation that UCSC received $80 million in federal funds in 2005 and receives "tens of millions" every year . . . YAF argues it is not speculative what the University would choose and "there is 'little doubt' that UCSC's behavior would change" if the Secretary invoked the Solomon Amendment against it. . . .  Merely showing UCSC's behavior would change in some undefined way is not enough, however . . . .

The panel also noted that UCSC has a written policy of providing equal access to military recruiters and that the school took some measures to equalize students' access to military recruiters.

The lower court also ruled that the Secretary's decision whether to enforce the Solomon Amendment was not reviewable under the APA.  The D.C. Circuit did not address this.


July 27, 2009 in Recent Cases, Standing | Permalink | Comments (0) | TrackBack (0)

The Senate Judiciary Committee's Other Business on Tuesday: Military Tribunals

The Senate Judiciary Committee will vote on Judge Sotomayor's nomination tomorrow at 10:00 am (EDT).  But later in the day, at 2:30, the Subcommittee on Terrorism and Homeland Security will hold a hearing titled "Prosecuting Terrorists: Civilian and Military Trials for GTMO and Beyond."  Click here for details and a link to the live web-cast.

The hearing comes in the shadow of the government's mishandling and delays in the Jawad case and the Obama administration's efforts to revamp its methods of dealing with detainees.


July 27, 2009 in Congressional Authority, Executive Authority, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 22, 2009

Government's Handling of Detainee Jawad's Case is an "Outrage"

Judge Ellen Segal Huvelle (D.D.C.) held a hearing last week in Guantanamo detainee Mohammed Jawad's habeas case in which she lambasted the government for its most recent gambit: A motion to amend its statement of facts supporting its case against Jawad.  The NYT posted the hearing transcript here

When detained, Jawad was the youngest detainee at Guantanamo Bay; the government has held him for over seven years.  His military commission trial got caught between the Bush administration's military commission system and the Obama administration's efforts to revamp it and to consider other options for Guantanamo detainees.  The case was so bad that the former lead military prosecutor left the military commission last year and submitted a 14-page statement describing Jawad's torture in U.S. custody and stating that the flaws in the military commission system made it impossible "to harbor the remotest hope that justice is an achievable goal."  (I posted on Jawad's case most recently here.)

In Jawad's habeas case, Judge Huvelle most recently granted Jawad's unopposed motion to suppress his inculpatory statements.  Now every one of Jawad's inculpatory statements is out, apparently leaving the government with only the barest trace of a case.

Last week's hearing focused on the government's motion to amend its statement of facts supporting Jawad's continued detention.  The government's DOJ prosecutors asked for more time to consult internally about how to proceed after discovering "new" information--new, apparently, to the DOJ, but already released in Jawad's military commission case.  (Yes, you read that right.)

Given this background, Judge Huvelle understandably expressed deep, deep frustration with the government's move.  (Take a look at the transcript for yourself.  I'd excerpt portions, but I'm afraid I'd end up excerpting the whole thing.)  Nevertheless, she granted the motion and set a merits hearing for August 5. 

If the government doesn't pull any more tricks--and Judge Huvelle specifically ruled out transferring the case to the Southern District of New York, presumably for a regular Article III criminal trial--the government will have to meet the Obama administration's new (but only slightly revised) standard for detention.  And it will have to meet the standard with live witnesses, according to Judge Huvelle's statements at the hearing.

Government attorneys didn't reveal much about their legal positions on Judge Huvelle's instructions.  But take a look at this claim by one of them: "Your Honor, this is a war time habeas proceeding.  So it is not a normal situation where you call live witnesses."  The claim is reminiscent of the Bush administration's seemingly catch-all position that the government can do what it wants because this is war.  Like many, Judge Huvelle was unpersuaded.  In response to the claim, she simply told the DOJ attorney, "Fine, don't."


July 22, 2009 in News, Recent Cases, War Powers | Permalink | Comments (0) | TrackBack (0)

Lincoln's Constitution Seminar

Designed for graduate students and junior faculty in history, political science, law and related disciplines, the New York Historical Society (in NYC)  will be hosting the seminar Lincoln’s Constitution on Thursday afternoons from 1:00 to 3:00 p.m, on September 17 and 24 and on October 1, 15, 22, and 29, 2009.
The seminar will be taught by  Akhil Reed Amar (Yale College and Yale Law School) and James Oakes (CUNY Graduate Center), who is the author of The Radical and the Republican: Frederick
Douglass, Abraham Lincoln and the Triumph of Antislavery Politics
, as well as The Ruling Race: A History of American Slaveholders.

Picture 1

The deadline to apply is August 30.  More information here.

There will also be an exhibit "Lincoln and New York" beginning October 9.


July 22, 2009 in Conferences, Equal Protection, Fifteenth Amendment, Fourteenth Amendment, History, News, Reconstruction Era Amendments, Scholarship, Thirteenth Amendment | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 21, 2009

What Judge Sotomayor Didn't Say about Congress's Unenumerated Powers

Judge Sotomayor offered her thoughts about congressional authority, the Tenth Amendment, and enumerated powers in this written exchange with Senator Coburn:

How do you reconcile the tension between an enumerated power, the Tenth Amendment, and the Commerce Clause?

Response:  The Interstate Commerce Clause is one of the constitutionally enumerated sources of congressional power.  Within the scope of that and other sources of federal legislative power, Congress has broad authority.  But the constitutional enumeration of federal legislative power is also a limitation: Congress has no authority to legislate except pursuant to a constitutionally enumerated source of power.  See Marbury v. Madison, 1 Cranch 137, 176 (1803) (Marshall, C.J.) ("The powers of the legislature are defined, and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.").  This is a critical feature of our constitutional federalism.  The Tenth Amendment underscores this point by providing that "[t]he powers not delegated to the [United States] by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

But Judge Sotomayor didn't say anything about another quote from McCulloch v. Maryland and the Necessary and Proper Clause:

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.

This quote appeared most recently in a couple of concurrences by Justice Thomas in Gonzales v. Raich (upholding the federal Controlled Substances Act over the state Compassionate Use Act, permitting the use of medical marijuana) and Sabri v. U.S. (upholding the federal bribery prohibition on the use of federal funds).


July 21, 2009 in Commerce Clause, Congressional Authority, News | Permalink | Comments (0) | TrackBack (0)

Sotomayor on Whether Roe "Made Law"

Judge Sotomayor was predictably reticent in her responses to Senate Judiciary Republicans' written questions.  But several exchanges are worthy of note.  Here's one, with Senator Cornyn:

2.  In your view, did Brown v. Board of Education make law or did it merely interpret law?  Please explain.

Response: As explained in my response to question 2, I believe that the Supreme Court "interprets" law.  Brown v. Board of Education . . . is widely regarded as a correct interpretation of the constitutional command for equal protection of the laws.

3.  In your view, did Roe v. Wade make law or did it merely interpret law?  Please explain.

Response: As explained in my response to question 1, I believe that the Supreme Court "interprets" law.  Cases subsequent to Roe v. Wade . . . have re-affirmed the core holding of Roe.  Cases related to termination of pregnancies continue to come before the Court, and therefore it would be inappropriate for me to comment further.

4.  In your view, did Lochner v. New York make law or did it merely interpret law?  Please explain.

Response:  As explained in my response to question 1, I believe that the Supreme Court "interprets" law.  The reasoning in Lochner v. New York . . . has been criticized by the Supreme Court, and that case is now widely regarded as wrongly decided.

5.  In your view, did Dred Scott v. Sanford make law or did it merely interpret law?  Please explain.

Response:  As explained in my response to question 1, I believe that the Supreme Court "interprets" law, but Dred Scott v. Sandford . . . is widely regarded as wrongly decided.

6.  In your view, did Bush v. Gore make law or did it merely interpret law?  Please explain.

Response: As explained in my response to question 1, I believe that the Supreme Court "interprets" law.  I would not comment on the merits of a recent Supreme Court decision.

Note Judge Sotomayor's different responses to the question on Roe and to the question on Brown.  These answers didn't need to be different.  She simply could have written that the core of both Roe and Brown have been affirmed and reaffirmed by the Court.  And she had the same good reason not to comment further on Brown that she had on Roe: Brown continues to come before the Court, most recently in the 2006 Term in Parents Involved v. Seattle School District No. 1.

It's dangerous to read too much into responses like these, especially when the questions are so obviously political (and not strictly legal, if there's a difference between the two).  But given that Judge Sotomayor could have safely answered these questions in different ways, I wonder whether her response to the question about Roe says anything about her views on its "core holding." 


July 21, 2009 in Abortion, Fourteenth Amendment, Fundamental Rights, News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Monday, July 20, 2009

Iqbal's Impact

Adam Liptak reports in the NYT on the impact of Ashcroft v. Iqbal, this term's decision dismissing a plaintiff's Bivens complaint against high-level federal officials for failure to describe with enough detail the officials' actions that led to the alleged constitutional violations.  Iqbal thus requires a more specific pleading standard for such actions, and, as we predicted when it came down, has already resulted in a number of dismissals.

Liptak reports that lower courts have cited Iqbal more than 500 times in the last two months.  Liptak:

In the new world, after Iqbal, a lawsuit has to satisfy a skeptical judicial gatekeeper.  "It obviously licenses highly subjective judgments," said Stephnen B. Burbank, an authority on civil procedure at the University of Pennsylvania Law School.  "This is a blank check for federal judges to get rid of cases they disfavor."

Recall that rather than accepting the plaintiff's allegations as true in Iqbal, the Court created and interposed its own "likely explanations" between the plaintiff's factual allegations and its legal conclusions.  Thus, rather than accepting Iqbal's allegations that the defendants detained him on account of his race, religion, or national origin in violation of his First and Fifth Amendment rights, the Court wrote that

[i]t should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the [9/11 attacks] would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims.

When Iqbal gives this kind of roadmap for lower courts to interpose their own explanations and defenses, it's easy to see how Professor Burbank is right: "This is a blank check for federal judges to get rid of cases they disfavor."


July 20, 2009 in News, Recent Cases | Permalink | Comments (1) | TrackBack (0)

Sotomayor Vote - Senate Judiciary Committee

The vote on Sotomayor has been held over.
The Committee vote on the nomination of Judge Sonia Sotomayor to be an Associate Justice of the United States Supreme Court is now scheduled for Tuesday, July 28, at 10:00 a.m. in room 216 of the Hart Senate Office Building.  The meeting will be webcast live online on the committee's website.


The Senate Judiciary Committee's vote on the nomination of Sonia Sotomayor is scheduled for Tuesday, July 21, at 10.00am and will be webcast live on the committee's site here.


July 20, 2009 in News | Permalink | Comments (0) | TrackBack (0)

Sunday, July 19, 2009


The questioning on "judicial values," phrased as "should judges just apply the law or should they bring their own values to the task" is not a uniquely American one.  Indeed, this is the topic on a forum to be held at The Law School of University of Sydney, Australia, August 27, details here.  

The participants include Justice Michael Kirby (former High Court Justice) and Professor Reg Graycar (University of Sydney), who were most recently discussed on Constitutional Law Prof Blog here and here, as well Professor Justin Malbon of Monash University and Bernhard Schlink.

ImageDB.cgi  Schlink, of course, is the author of the bestselling novel The Reader,  which is about a young man's affair with an older woman who is put on trial for her role in the Nazi regime.  The book was made into a popular movie in 2008.  

Schlink is not just a bestselling author, but also a Professor of Constitutional and Administrative Law and the Philosophy of Law at Berlin's Humboldt University, who was previously a justice of the Constitutional Law Court in Bonn, Germany. 

The forum event is being held in conjunction with the Sydney Writers Festival and hosted by Damien Carrick of the Australian Radio National’s "The Law Report."  The publicity frames the discussion this way:

The [Australian] High Court attracted enormous criticism after the Mabo and Wik decisions [relating to Aboriginal land claims] for changing the law to suit the personal values of the (unelected) judges. Judges during the Nazi and South African apartheid eras were criticised for merely applying the law, and were accused of being accomplices to those grotesque regimes. Should judges apply their “judicial values” to their judicial tasks?

Schlink's most recent book is Guilt About the Past, a series of six essays based on his 2008 Weidenfeld lectures at Oxford University and being published by an Australian University Press.


July 19, 2009 in Books, Comparative Constitutionalism, Conferences, Current Affairs, History, International, Interpretation, Profiles in Con Law Teaching, Theory | Permalink | Comments (0) | TrackBack (0)

Thursday, July 16, 2009

The Backstory on State Secrets

The backstory of U.S. v. Reynolds, the Supreme Court case that gave rise to the modern state secrets privilege, is well known.  But you might want to check out this 14-minute segment on NPR's This American Life.  Host Ira Glass interviews Barry Siegel, author of Claim of Privilege, and Judy Loether, who lost her father in the B-29 crash that formed the plaintiffs' underlying tort claims in the Reynolds litigation.  This very short piece could make a nice supplement to your lessons on the state secrets privilege.

Click on the link above--the one at "14-minute segment"--click on the full episode, and move the cursor in the audio box forward in the program.  This segment begins at 29:05.

Thanks to student Gina LoGalbo for the tip.


July 16, 2009 in State Secrets, Teaching Tips | Permalink | Comments (1) | TrackBack (0)

Wednesday, July 15, 2009

Texas Mom Seeks Civil Right to Counsel at Supreme Court

Tracey Rhine, a Texas mother who lost custody of her child to temporary foster parents in a private custody dispute in the Texas courts, filed a cert. petition with the U.S. Supreme Court to challenge the Texas courts' denial of appointed counsel, according to the Texas Lawyer.

The Texas Department of Protective and Regulatory Services removed Rhine's child from Rhine's custody and placed the child with a temporary foster couple.  After Rhine and the Department agreed upon conditions, the Department placed the child back with Rhine.  The foster couple then sought custody in the Texas courts, and Rhine moved for court-appointed counsel.  The Texas courts rejected Rhine's request for appointed trial counsel and awarded custody to the foster parents.  The state appellate court rejected Rhine's request for appointed appellate counsel and remanded the case to the trial court.  The trial court found that Rhine was indigent, but did not qualify for court-appointed counsel, because the underlying custody case was not initiated by the state (it was initiated by the foster parents).

Texas law provides for court-appointed counsel for indigent litigants in state-initiated deprivation-of-parental-rights proceedings, but not in private custody disputes.  The differential treatment raises equal protection concerns, and Rhine argued in her cert. petition that the Texas courts' denial of appointed counsel in her case violated the Fourteenth Amendment Equal Protection Clause. 

Rhine's argument is not without precedent--but it's state constitutional precedent.  The Illinois and North Dakota courts have ruled that state equal protection doctrine mandates appointment of counsel under similar circumstances.  California courts have gone the other way under their state constitution.

Rhine's argument on equal protection grounds also sidesteps the major hurdle that plaintiffs face in seeking a civil right to counsel: the Supreme Court's 1981 case Lassiter v. Department of Social Services.  In that case, the Court ruled that an indigent litigant had no categorical right to counsel under the Due Process Clause--that due process demanded a balance (the Mathews v. Eldridge balance) to determine whether an indigent litigant qualified for appointed counsel in any particular case.  Oddly--and without citation to authority--the Court in Lassiter established a presumption against appointed counsel except in cases where physical liberty was at stake.

Rhine's case avoids the Lassiter hurdle by arguing equal protection, not due process.  And on the right to appellate counsel, Rhine's case at least potentially avoids the Lassiter hurdle by pursuing an argument tilted toward equal protection under Douglas v. California (establishing a right to appellate counsel for criminal defendants on equal protection grounds).  (I made that argument here and here.)  Thus Rhine doesn't appear to be taking on Lassiter--that could have been a tough case in the current political and economic environment, and with the current composition of the Court.  Instead, Rhine is moving around Lassiter with an argument that worked under at least two state constitutions. 

If the Court takes the case, three issues will be important to watch: first, the Court's treatment of the Fourteenth Amendment Equal Protection Clause; second, the Court's treatment of access to justice issues (and, possibly, how it treats the fundamental right to access in Tennessee v. Lane in this different context); and finally, the Court's treatment of state constitutional rulings on parallel provisions.

For more on the civil right to counsel movement, check out the National Coalition for a Civil Right to Counsel web-site.


July 15, 2009 in Equal Protection, Fourteenth Amendment, Fundamental Rights, Procedural Due Process, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 14, 2009

Sotomayor and Hatch on Second Amendment Incorporation

Sen. Orrin Hatch (R-UT) today questioned Supreme Court nominee Judge Sonia Sotomayor on Second Amendment application to the states.  The exchange--or, rather, Hatch's statements--reveal several political and doctrinal problems for those who simultaneously favor Second Amendment incorporation, originalism, and a restrained judiciary.  Under Supreme Court precedent, these values are in fundamental tension in the incorporation debates, and only the Supreme Court can provide a solution.  (But, ironically, the solution for this camp may be worse than the problem.)

Here's part of the exchange:

Hatch: I understand.  Let me turn to your decision in Maloney v. Cuomo.  [Our post, by RR, here.]  This was the first post-Heller decision about the Second Amendment to reach any federal court, or federal appeals court.  I think I should be more specific.  In this case, you held that the Second Amendment applies only to the federal government, not to the states, and this was after Heller.  And am I right that your authority for that proposition was the Supreme Court's 1886 decision in Presser v. Illinois?

Sotomayor: That, plus some Second Circuit precedent that had held . . .

Hatch: OK

Sotomayor: . . . that it had not been--that the amendment had not . . .

Hatch: But Presser was definitely one of the . . .

Sotomayor: It was, but . . .

Hatch: . . . cases you relied on?  OK.  In that case--or, I should say, that case involved the Fourteenth Amendment's Privileges and Immunities Clause.  Is that correct?  You're aware of that?

Sotomayor: It may have.  I haven't read it recently enough to remember exactly.

Hatch: You can take my word on it.

Sotomayor: OK.  I'll accept . . .

Hatch: Thank you.  Last year's decision in Heller involved the District of Columbia, so it did not decide the issue of whether the Second Amendment applies to the states or is incorporated, but the Court did say that its 19th century cases about applying the Bill of Rights to the states, quote, "did not engage the sort of Fourteenth Amendment inquiry required by our later cases," unquote.

Now here's my question: Am I right that those later cases to which the Court referred involved the Fourteenth Amendment's Due Process Clause rather than its Privileges and Immunities Clause?

. . .

Isn't the Presser case that you relied on in Maloney to say that the Second Amendment does not apply to the states one of those 19th century cases where they've used the Privileges and Immunities Clause, not the Fourteenth Amendment Due Process Clause, to incorporate?

. . .

Well, the reason, the reason I'm going over this is because I believe you've applied the wrong line of cases in Maloney, because you were applying cases that used the Privileges and Immunities Clause and not the cases that used the Fourteenth Amendment Due Process Clause.

. . .

Well the point that I'm really making is that the decision was based upon a 19th century case that relied on the Privileges and Immunities Clause, which is not the clause that we used to invoke the doctrine of incorporation today, and that's just an important consideration for you as you see these cases in the future.

The problem is that the values of Second Amendment incorporation, originalism, and a restrained judiciary (or at least a restrained circuit judge, one who does not make policy) run up against each other under the Court's jurisprudence.  Under Hatch's 19th century cases--which, alas, are still good law--Judge Sotomayor could not have incorporated the Second Amendment by way of the Fourteenth Amendment Privileges or Immunities Clause.  Everyone--including the Seventh and Ninth Circuits--seems to agree on this.

But then judicial restraint runs up against incorporation: a restrained circuit court judge should not incorporate the Second Amendment under the Due Process Clause; this is a job for only the Supreme Court.  (Favoring incorporation over the value of a restrained circuit judge puts Hatch in the surprising company of the Ninth Circuit--the archetypal "activist" court--and at odds with a Seventh Circuit panel that included Judges Easterbrook and Posner.)

And originalism runs up against both Due Process incorporation and the desire for restrained circuit judges.  An originalist method would point to incorporation--by way of the Privileges or Immunities Clause, not the Due Process Clause.  But this would have required Judge Sotomayor to vote to ignore those 19th century cases--clearly beyond a restrained circuit judge's authority.

The best a restrained circuit judge could do is exactly what Judge Sotomayor--and Judges Easterbrook and Posner--did: punt on Second Amendment incorporation until the Supreme Court rules.

Those simultaneously committed to Second Amendment incorporation, originalism, and a restrained judiciary shouldn't fault Judge Sotomayor for her restrained decision in Maloney.  Instead, they should press the Supreme Court to overturn those 19th century cases and incorporate the Second Amendment by way of the Fourteenth Amendment Privileges or Immunities Clause.

But for this crew, this solution might well be worse than the problem.  A revitalized Privileges or Immunities Clause could provide strong ammunition for those who seek more and broader unenumerated (and politically controversial) rights through the courts and a greater role for the federal courts in protecting individual rights against the states.


July 14, 2009 in Fourteenth Amendment, Fundamental Rights, News, Privileges and Immunities | Permalink | Comments (0) | TrackBack (0)

Friday, July 10, 2009

Interview with Ruth Bader Ginsburg in NYT

"With the confirmation hearings of Judge Sonia Sotomayor just days away, an interview with Justice Ruth Bader Ginsburg in The Times’s magazine for Sunday reveals her very outspoken views on critics of the nominee and the composition of the court."  So reports the NYT own blog.

The magazine's interview, by Emily Bazelon, does make interesting reading.  Ginsburg speaks explicitly about recent cases such as Ricci and Heller as well as abortion and reproductive rights. 

On equal protection on the basis of sex, there is this fascinating colloquy, in which Ginsburg specifically identifies the gender bias of Justice Stevens:

RuthginsburgQ: You have written, “To turn in a new direction, the court first had to gain an understanding that legislation apparently designed to benefit or protect women could have the opposite effect.” The pedestal versus the cage. Has the court made that turn completely, or is there still more work to be done?

JUSTICE GINSBURG: Not completely, as you can see in the case involving whether a child acquires citizenship from an unwed father. [Nguyen v. INS, in which the court in 2001 upheld, by 5 to 4, a law that set different requirements for a child to become a citizen, depending on whether his citizenship rights came from his unmarried mother or his unmarried father.] The majority thought there was something about the link between a mother and a child that doesn’t exist between the father and a child. But in fact the child in the case had been brought up by his father.

They were held back by a way of looking at the world in which a man who wasn’t married simply was not responsible. There must have been so many repetitions of Madame Butterfly in World War II. And for Justice Stevens [who voted with the majority], that was part of his experience. I think that’s going to be over in the next generation, these kinds of rulings.


July 10, 2009 in Current Affairs, Equal Protection, Gender, Interpretation, News | Permalink | Comments (0) | TrackBack (0)

Conference: Supreme Court Preview

The Institute of Bill of Rights Law
22nd Annual Supreme Court Preview
Friday & Saturday, October 2 & 3, 2009
William & Mary School of Law
Williamsburg, Virginia
Featuring Distinguished Guest
Former United States Supreme Court Justice
Chancellor of the College of William & Mary
Sandra Day O'Connor


For more information see here.


July 10, 2009 in Conferences | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 8, 2009

In case you missed it . . . Summer Edition Part 1

Hello dear profs!  This has been quite a busy summer.   Here a a few stories you might have missed while teaching, vacationing, or working on your scholarship.   I present these in no particular order:

1.  Pre-emption - Recently, the Third Circuit heard a case challenging the Snapple company's use of the term "natural" in its advertising.  The district court dismissed the case, reasoning that the FDA regulations on the issue had occupied the field and ended the matter.   However, in the intervening period, the Supreme Court decided the Wyeth case.  According to the write-up, the Third Circuit judges were quite aware of the change and questioned the continuing validity of the doctrine.  Lawyers for the food industry fear a ruling for the plaintiffs in this case could "open the floodgates to consumer class action claims against a whole slew of food sellers and manufacturers."

2.  Legal Theory Papers -  The Legal Theory Blog posts two papers that are worth a read.  The first is a  a paper by Prof. Richard A. Paschal (GMU) entitled "Congressional Power to Change Constitutional Law - Three Lacunae.  While conceding that the norm is that Congress cannot do so, in three areas - "state sovereign immunity under the Eleventh Amendment, intergovernmental tax immunity for both state and federal governments, and the Dormant Commerce Clause" - it can and does.   The second is a paper by law clerk Blake Denton entitled "While the Senate Sleeps: Do Contemporary Events Warrant a New Interpretation of the Recess Appointments Clause?"  According to the abstract, the paper "uses a "living Constitution" approach and concludes that in light of size, structure, and composition of the contemporary federal judiciary, the purposes underlying the Recess Appointments Clause's ratification are no longer met when the Clause is applied to vacancies in Article III Courts."   Both of these papers appear to raise quite intriguing questions on constitutional law.

3.  Dorf on the Important Counter-majoritarian Difficulty - Over at Dorf on Law, Professor Dorf argues that while the traditional counter-majoritarian difficulty - unelected judges overturning laws enacted by a popularly elected legislature - there are significant non-judicial counter-majoritarian difficulties as well.   Among these are: campaign finance and lobbying, super-majority requirements (such as 60 to break a filibuster) in Congress, and "the Senate itself  . . . iinsofar as it vastly over-represents residents of low-population states, which tend to be disproportionately agricultural and rural.

4. Fundamental Rights - Two quick notes here.  First, the Arizona legislature has passed a bill that would further restrict parental notice requirements and strengthen waiting period requirements.  Second, some doctors are threatening to end their practices if President Obama follows through on his goal to remove the so-called "conscience clauses" that permit health care professionals to refuse to provide certain medications or perform certain procedures on (primarily) religious grounds. 

That's all for now, but I'm sure we'll have more to report before classes begin!


July 8, 2009 | Permalink | Comments (0) | TrackBack (0)

New York state's constitution and the newly appointed Lieutenant-Governor

New York’s Governor David Paterson - - - who was once the Lieutenant-Governor under New York’s Governor Eliot Spitzer before Spitzer’s scandal-induced resignation in March 2008- - - appointed  Richard Ravitch as Lieutenant-Governor today.  Paterson’s timing is prompted by the power struggle in the state senate; a Lt-Gov. could break the deadlock.  Further, without a Lt-Governor and without a clear "temporary president" of the state senate (given the power struggle), it may be unclear who would assume the governorship if Paterson were unable to serve.

However, the constitutionality of Paterson’s appointment of a Lt-Gov is far from clear.  The New York state constitution does not specifically provide such power.  Article IV, section 6 provides:

The lieutenant-governor shall possess the same qualifications of eligibility for office as the governor. The lieutenant-governor shall be the president of the senate but shall have only a casting vote therein. The lieutenant- governor shall receive for his or her services an annual salary to be fixed by joint resolution of the senate and assembly.

In case of vacancy in the offices of both governor and lieutenant- governor, a governor and lieutenant-governor shall be elected for the remainder of the term at the next general election happening not less than three months after both offices shall have become vacant. No election of a lieutenant-governor shall be had in any event except at the time of electing a governor.

In case of vacancy in the offices of both governor and lieutenant- governor or if both of them shall be impeached, absent from the state or otherwise unable to discharge the powers and duties of the office of governor, the temporary president of the senate shall act as governor until the inability shall cease or until a governor shall be elected.

In case of vacancy in the office of lieutenant-governor alone, or if the lieutenant-governor shall be impeached, absent from the state or otherwise unable to discharge the duties of office, the temporary president of the senate shall perform all the duties of lieutenant- governor during such vacancy or inability.

If, when the duty of acting as governor devolves upon the temporary president of the senate, there be a vacancy in such office or the temporary president of the senate shall be absent from the state or otherwise unable to discharge the duties of governor, the speaker of the assembly shall act as governor during such vacancy or inability.

The legislature may provide for the devolution of the duty of acting as governor in any case not provided for in this article.

Thus, even apart from the problem that in NY at the moment there is not agreement upon the identity of  the “temporary president if the senate,”  the state constitution seems to clearly contemplate that the Lt-Governor is not simply selected by the Governor.  In addition to section 6 above, section 1  provides:

The executive power shall be vested in the governor, who shall hold office for four years; the lieutenant-governor shall be chosen at the same time, and for the same term. The governor and lieutenant-governor shall be chosen at the general election held in the year nineteen hundred thirty-eight, and each fourth year thereafter. They shall be chosen jointly, by the casting by each voter of a single vote applicable to both offices, and the legislature by law shall provide for making such choice in such manner. The respective persons having the highest number of votes cast jointly for them for governor and lieutenant-governor respectively shall be elected.

However, Paterson is relying on the opinions of advocacy groups and NY “legal experts” that he has the power to appoint a Lt-Governor  under the Public Officers Law and that such an action is “not precluded” by the state constitution.  The brief statement is available here on the “Capitol Confidential” blog of the Albany Times-Union which also has a video of Paterson’s brief speech, statements of legislators, and is a great source for continuing coverage

Certainly, there will be a constitutional challenge in the NY state courts.  One legislator is already calling for the court to assume its role as an “impartial, authoritative umpire” and not make use of the “political question” “dodge,” arguing that to refrain from deciding is actually a type of judicial activism:  

For a month, we have had a crippled Senate, gubernatorial succession in turmoil, and the finances and operations of local governments throughout the state endangered. Ironically, the purest form of judicial activism is when a court, on "political question" grounds, refuses to act at all.


It may not be a "constitutional crisis" in the Empire State, but there is certainly much constitutional confusion.     



July 8, 2009 in Current Affairs, News, State Constitutional Law | Permalink | Comments (0) | TrackBack (0)

Monday, July 6, 2009

Want to Attend the Sotomayor Confirmation Hearings?

The Senate Judiciary Committee has posted guidelines for members of the media and the public who would like to attend the Confirmation Hearings.


Guidelines For Public Attendance At The Nomination Hearing
Of Sonia Sotomayor
To Be An Associate Justice
Of The Supreme Court Of The United States

At all times, those standing in line shall abide by the rules established by the Senate Judiciary Committee.

Due to limited space in the hearing room, admittance to the hearings is only for a limited period of time in order to allow more members of the public access to the hearings.

Passes to hearings will be distributed on a first come, first serve basis. Passes do not guarantee admission into the hearing and are only valid for the day in which the pass is issued.

Distribution of the passes will begin at 8:00 A.M. on each day of the hearings at the following location:

On Monday, July 13, 2009, continuing through the conclusion of the hearings: The line for admission into the hearing will start at the NW Corner of First Street and C Street NE.
Individuals who have received a pass will be ushered into the hearing room by Judiciary Committee staff at different intervals throughout the day. Once a pass is obtained, pass holders will be advised to return to the hearing lines (see map above) at least 1 hour before the estimated time of entry to the hearing room.

No picketing or demonstrating will be allowed by individuals standing in line. At any time authorized staff can request the removal of any person from the line for failure to adhere to established rules or other security/safety related reasons.

Once persons holding passes have been cleared by security, they must remain with the group at all times. Failure to follow this guideline will result in individuals not being admitted into the hearing room.

Persons who received a pass and were not admitted to the hearing on the day in which the pass was issued will not receive special accommodations for the next day of hearings. Individuals wishing to wait in line for the following day's hearing may do so ONLY after the current day's hearing has concluded.

The following items are prohibited for those attending the hearing:

Firearms; weapons of any kind; ammunition (either real or simulated); explosives of any kind (including fireworks); knives; blades; razors; box cutters; or other sharp objects (of any length); any pointed object (i.e. knitting needles, letter openers, etc.); aerosol sprays; cans and bottles; coolers; thermal or glass containers; mace; pepper spray; sticks, poles; pocket or hand tools (such as a Leatherman); packages; backpacks; large bags; duffel bags; camera bags; suitcases; laser pointers; strollers; chairs; umbrellas; food or beverages of any kind; posters, signs or placards larger than  8.5 inches by 11 inches (must be held directly in front of the body and no higher than the shoulders); signage or clothing with profanity or images deemed inappropriate by security screeners; and any other items at the discretion of the security screeners that may pose a potential safety hazard.

Photography, of any kind, is strictly prohibited in the hearing room, except for authorized staff.


July 6, 2009 in Current Affairs, History, News | Permalink | Comments (0) | TrackBack (0)