Thursday, October 14, 2010
The Supreme Court and the High Court of Pakistan are badly in need of a lesson in judicial minimalism, according to Saroop Ijaz, advocate before the Lahore High Court in Pakistan, in a column this week in the Jurist. Based on Ijaz's examples, he's right. Among them:
Public Debate as Judicial Contempt
The Lahore High Court recently imposed a ban on Facebook, Youtube, and Google, among others, based on these sites' blasphemous content. The ban was lifted, but the matter remains before the court. As a result, according to Ijaz, "[a]ny [public] debate now carries the possibility of contempt proceedings, since it would be commenting on a [matter before the court]." By intervening in the matter, the court cut-off a developing public discourse and kept the issues for itself.
The Constitutionality of a Constitutional Amendment
The Supreme Court is hearing a petition challenging the constitutionality of the 18th Amendment, which curbed the President's powers to unilaterally dissolve Parliament. The petitioners' argument is that the court has the power to rule a constitutional amendment unconstitutional, if the amendment violates the basic structure of the constitution. A long line of Supreme Court cases suggests that such questions should be left to Pakistanis themselves, but, Ijaz argues, the court's intervention suggests that it may be open to taking the issue out of the public sphere and ruling on it itself.
Suo Moto Jurisdiction
Pakistan's superior courts have authority to take up a matter on their own (without an Article III-like case or controversy, or, apparently, even a petition) on any matter in the public interest. Most recently, the Lahore High Court's Divisional Bench set the price of sugar at 40 Pakistani Rupees per kilogram--a matter well outside the expertise of the judiciary and best suited for expert and political discourse. The courts' suo moto jurisdiction means that the courts can take any issue in the public interest out of the public sphere and rule on it themselves.
Judicial minimalism says that courts should rule only on the narrow cases in front of them and leave the larger theoretical and policy issues to the political process. Whether minimalism is the answer to Pakistan's judicial overreaching or not, these examples are extreme illustrations of why we in the U.S. take separation-of-powers and Article III case-and-controversy requirements so seriously.
Tuesday, October 12, 2010
The Secretary of the Florida's Department of Families and Children has reportedly stated that it will not appeal the Florida appellate court's ruling declaring unconstitutional the state law banning "homosexuals" from adopting.
While the intermediate appellate court opinion noted that its ruling was "unlikely to be the last word," it may be. Under Florida constitutional interpretations, the appellate court ruling would bind all courts unless and until there was another ruling. However, the state attorney general could possibly file a notice of appeal, despite the Secretary's decision (presumably made in consultation with the governor).
However, as of today, the homosexual ban remains on the state agency's website:
Recall the two decisions of United States District Judge Joseph Tauro holding section 3 of the Defense of Mariage Act (DOMA) unconstitutional: Commonwealth of Massachusetts v. HHS and Gill v. Office of Personnel Management.
The Obama Department of Justice has filed its notices of appeal to the First Circuit today.
In a brief order today, federal district judge Virginia Phillips, Central District of California, has permanently enjoined the military's "don't ask, don't tell" policy. The judge had previously ruled that the military's "don't ask, don't tell" policy regulating homosexuality is unconstitutional under the Fifth Amendment's due process clause and under the First Amendment.
(1) DECLARES that the act known as "Don't Ask, Don't Tell" infringes the fundamental rights of United States servicemembers and prospective servicemembers and violates (a) the substantive due process rights guaranteed under the Fifth Amendment to the United States Constitution, and(b) the rights to freedom of speech and to petition the Government for redress of grievances guaranteed by the First Amendment to the United States Constitution.
(2) PERMANENTLY ENJOINS Defendants United States of America and the Secretary of Defense, their agents, servants, officers, employees, and attorneys, and all persons acting in participation or concert with them or under their direction or command, from enforcing or applying the "Don't Ask, Don't Tell" Act and implementing regulations, against any person under their jurisdiction or command;
(3) ORDERS Defendants United States of America and the Secretary of Defense immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the "Don't Ask, Don't Tell" Act, or pursuant to 10 U.S.C. § 654 or its implementing regulations, on or prior to the date of this Judgment.
The judge also allows the Plaintiff, Log Cabin Republicans, attorneys fees.
UPDATE: GOVERNMENT SEEKS A STAY AND APPEALS TO NINTH CIRCUIT, from SCOTUSBlog here.
Monday, October 11, 2010
The ACLU and Center for Constitutional Rights responded Friday to the government's motion to dismiss in Al-Aulaqi v. Obama. The case challenges the President's authority to order the targeting killing of Nasser Al-Aulaqi, a U.S. citizen allegedly supporting al Qaeda in the Arabian Peninsula. (We covered the government's authority, or lack thereof, here.)
The government moved to dismiss the case last month, arguing that the plaintiff lacked standing, and that the case is barred by the political question doctrine and the state secrets privilege.
On standing, the ACLU and CCR argue that al-Aulaqi's father has next-of-friend standing to bring the case on behalf of Nasser, his son, and has satisfied all the standing requirements: "At the most basic level, the injury here could not be clearer, or more profound: Plaintiff's suit is based on his fear that the government will kill his son."
On the political question, they argue that this case is every bit as appropriate for the courts as a case involving indefinite executive detention of an American, executive detention and habeas at Guantanamo Bay, or the legality of military commissions--issues on which the Court has ruled relatively recently in Hamdi, Rasul and Boumediene, and Hamdan, respectively.
On the state secrets privilege, the groups argue that the government's assertion here, to dismiss the litigation on the pleadings based on the claim that the case would force the disclosure of state secrets, is sweeping and unsupported by law. It's also ironic:
that Anwar Al-Aulaqi has been targeted for assassination is known to the world only because senior administration officials, in an apparently coordinated media strategy, advised the nation's leading newspapers that the National Security Council had authorized the use of lethal force against him.
Op. at 45. It's not the first time we've seen this kind of irony.
Sunday, October 10, 2010
Thursday, October 7, 2010
Judge George Caram Steeh (E.D. Mich.) today denied the plaintiffs' motion for a preliminary injunction and rejected their claim for declaratory relief in a case challenging the federal government's authority to enact the individual health insurance mandate as part of federal health care reform. (Thanks to Politico for the link to the decision.) Our last post on this case is here.
The case, Thomas More Law Center v. Obama, involved a challenge to congressional authority to require individuals to purchase health insurance starting in 2014. The plaintiffs proffered a familiar argument against Congress's Commerce Clause authority: The requirement amounts to regulating the economic inactivity of not buying insurance. The plaintiffs claimed that Congress has never validly regulated inactivity under the Commerce Clause, and that the courts have never sanctioned such a regulation. According to the plaintiffs, the requirement thus went beyond the Commerce Clause's grant of authority to regulate only economic activity. (The plaintiffs also claimed that the mandate exceeded Congress's taxing power under the General Welfare Clause. Judge Steeh did not rule on this.)
Judge Steeh disagreed. He wrote that the uninsured have a substantial effect on the health care market--a trigger for congressional regulation under the Commerce Clause--because they shift costs by foregoing insurance now only to pay later:
The health care market is unlike other markets. No one can guarantee his or her health, or ensure that he or she will never participate in the health care market. Indeed, the opposite is nearly always true. The question is how participants in the health care market pay for medical expenses--through insurance, or through an attempt to pay out of pocket with a backstop of uncompensated care funded by third parties. This phenomenon of cost-shifting is what makes the health care market unique. Far from "inactivity," by choosing to forgo insurance plaintiffs are making an economic decision to try to pay for health care services later, out of pocket, rather than now through the purchase of insurance, collectively shifting billions of dollars, $43 billion in 2008, onto other market participants. As this cost-shifting is exactly what the Health Care Reform Act was enacted to address, there is no need for metaphysical gymnastics of the sort proscribed by [United States v. Lopez].
The plaintiffs have not opted out of the health care services market because, as living, breathing beings, who do not oppose medical services on religious grounds, they cannot opt out of this market. As inseparable and integral members of the health care services market, plaintiffs have made a choice regarding the method of payment for the services they expect to receive.
Op. at 16-17. Judge Steeh also concluded that the individual mandate is an essential part of the larger health care reform scheme, thus regulable under Gonzales v. Raich (upholding federal regulation of intrastate medical marijuana in part because the regulation was essential to the broader federal regulatory scheme for drugs). He wrote that plaintiffs will benefit from the "guaranteed issue" provision in the Act, enabling them to become insured even when they are already sick. Therefore without the individual mandate, there is an incentive for them to purchase insurance only when they become sick, thus spreading costs (and economic effects) to everyone else:
In 2014, the Act will bar insurers from refusing to cover individuals with pre-existing conditions and from setting eligibility rules based on health status or claims experience. At that time, all Americans will be insurable. Without the minimum coverage provision, there would be an incentive for some individuals to wait to purchase health insurance until they needed care, knowing that insurance would be available at all times. As a result, the most costly individuals would be in the insurance system and the least costly would be outside it. In turn, this would aggravate current problems with cost-shifting and lead to even higher premiums. The prospect of driving the insurance market into extinction led Congress to find that the minimum coverage provision was essential to the larger regulatory scheme of the Act.
Op. at 18.
Judge Steeh certainly defers to congressional fact-finding (as he must) on the uninsureds' substantial effects on interstate commerce. But neither congressional fact-finding nor the opinion builds "inference upon inference" to get from the uninsured to the interstate economy. See Lopez ("To uphold the Government's contentions [regarding the effect on interstate commerce of the Gun Free School Zone Act], we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States."). Instead, the opinion carefully and correctly traces both the expansive authority under the Commerce Clause (as reflected in Wickard v. Filburn and Gonzales v. Raich) and the limitations on that authority (under United States v. Morrison and Lopez). Judge Steeh concludes that while congressional requirement of this type may raise an issue of first impression, it also fits squarely within the Court's rulings allowing Congress to regulate a decision (even if not an action) that has a substantial effect on interstate commerce.
The case is in tension with an earlier federal court ruling from Virginia, rejecting the government's motion to dismiss in a case challenging the individual health insurance mandate.
(Judge Steeh also ruled that the plaintiffs had standing--their harm was their current income lost in order to save for future costs of health insurance--and that the case was ripe for judicial review.)
Wednesday, October 6, 2010
The Berkeley County Detention Center in South Carolina has an exceedingly limited book and magazine policy, according to a complaint which quotes detention center personnel as writing:
Our inmates are only allowed to receive soft back bibles in the mail directly from the publisher. They are not allowed to have magazines, newspapers, or any other type of books.
The detention centerhouses detainees for extended periods of time: with many being confined for more than sixty days, and some being confined for more than one year or two years. The jail has no library, and also restricts mail to letters and three non-Poloroid pictures. The Plaintiff, Prison Legal News, alleges the detention policies violate the First Amendment's Free Speech and Establishment Clauses, as well as the Due Process clause.
We recently discussed the September 2010 opinion Couch v. Jabe in which a federal judge declared unconstitutional the Virginia prison policy which excluded Ulysses and Lady Chatterly's Lover.
UPDATE: See comments for discussion of "postcard only" policies.
SCOTUSBlog has a round-up of the comments on the oral argument, as well as events after the oral argument.
One of our readers sent in this photo which she took and gave us permission to use, reminding us of the protests outside the funeral of VP Joe Biden's mother last January, discussed here.
Query: If this were the protest at issue in Snyder v. Phelps, would it change the analysis? How?
Image credit: Paula Gordon.
The Court heard oral arguments (transcript here) in Snyder v. Phelps this morning, an appeal involving the First Amendment right to protest juxtaposed against a tort judgment for intentional infliction of emotional distress. Background on the case below; update above.
Arguing for Albert Snyder, the father of the soldier, Sean Summers stressed "the private targeted nature of the speech" as removing it from First Amendment protection and allowing a tort award for intentional infliction of emotional distress. Some highlights from the oral argument revolved around the applicability of Hustler v. Falwell and issues regarding public figure and speech on a public matter. The hypothetical posed by Sotomayor was repeatedly referenced:
JUSTICE SOTOMAYOR: . . . in terms of infliction of emotional distress. If I am talking to you as a Marine, if you were a Marine, and I was talking about the Iran war and saying that you are perpetuating the horrors that America's doing and said other things that were offensive, would you have a cause of action because you are being called a perpetrator of the American experience?
Because the 1988 case of Hustler v. Falwell is the only intentional infliction of emotional distress/First Amendment case decided by the Court, a fact that Summers was repeatedly reminded of during his argument, Summers sought to distinguish the case, which involved a parody of Jerry Falwell done by Hustler Magazine.
MR. SUMMERS: I think the rule should be Hustler v. Falwell generally does not apply to a private figure unless the defendant can show some compelling connection there, and if you -- if you -
JUSTICE BREYER: Compelling.
MR. SUMMERS: Or at least reasonable, rational connection. In this case they don't even claim there is a connection. They just used this moment to hijack someone else's private event when they are grieving over a 20-year-old child's funeral.
Kagan isolated a passage from the case in an attempt to focus the issue:
JUSTICE KAGAN: Mr. Summers, Hustler seems to me to have one sentence that is key to the whole decision, and it goes like this. It says: "Outrageousness in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors' tastes or views or perhaps on the basis of their dislike of a particular expression."
How does that sentence -- how is that sentence less implicated, in a case about a private figure than in a case about a public figure?
In the oral argument on behalf of Fred Phelps, by his daughter, Margie Phelps, Justice Kagan acknowledged Ms. Phelps as a participant in the picketing that was before the Court, by asking
suppose your group or another group or -- picks a wounded soldier and follows him around, demonstrates at his home, demonstrates at his workplace, demonstrates at his church, basically saying a lot of the things that were on these signs or -- or other offensive and outrageous things, and just follows this person around, day-to-day. Does that person not have a claim for intentional infliction of emotional distress?
Justice Scalia invoked the doctrine of fighting words at several points, including this partiocularly feisty exchange:
JUSTICE SCALIA: My goodness. We did have a doctrine of fighting words, and you acknowledge that if somebody said, you know, things such as that to his face, that wouldn't be protected by the First Amendment.
MS. PHELPS: We agree that fighting words are less protected under the First Amendment.
JUSTICE SCALIA: Unprotected.
MS. PHELPS: I will go with unprotected, Justice Scalia. And if I may add this: Fighting words require imminence, they require proximity, and they require a lack of those words being part of a broader political or social -
JUSTICE SCALIA: Is that so? Do we know that?
MS. PHELPS: I beg your pardon?
JUSTICE SCALIA: Do we know that? Is it the criterion of the fighting words exception to the First Amendment that there be an actual fight? Certainly not that. Is it a requirement that there be a potential for a fight? I doubt it.
While Phelps at times argued that Mr. Snyder had made himself into a public figure, ultimately Phelps insisted that the doctrine was one of speech on public issues: "the umbrella of protection under the First Amendment that this Court has established firmly is speech on public issues. Sometimes you get under that umbrella because it's a public official or it's a public figure, but the umbrella that you give the protection for is speech on public issues."
However, Sotomayor did not appear to be satisfied by that distinction as applied:
JUSTICE SOTOMAYOR: What you have not explained to me is how your speech directed at the Snyders constituted public speech, or speech about a public matter. Because you are talking about them raising Matthew [Snyder, the decedent] for the devil, teaching him to, I think, defy the creator, to divorce and commit adultery.
At what point and how do we take personal attacks and permit those, as opposed to -- I fully accept you're entitled in some circumstances to speak about any political issue you want. But what's the line between doing that and then personalizing it and creating hardship to an individual?
At what point? That is precisely the question that the Court will decide.
Background on Snyder v. Phelps, the oral argument discussed above:
Phelps achieved notoriety with his protests at the funerals of military persons. Under the organization of the Westboro Baptist Church, consisting of Phelps and his family, the message of Phelps' protests is "godhatesfags" (which is the name of the website and the motto on the signage). Earlier in his career, Phelps protested lesbian and gay events (full disclosure: a lecture I gave was once picketed by Phelps), including most notably the funeral of Matthew Shepard. More recently, Phelps has directed his protests at funerals of military persons, despite the military's "don't ask, don't tell policy" with regard to homosexuality. Phelps' Brief on the merits argues that the "purpose of picketing in connection with funerals is to use an available public platform, when the living contemplate death, to deliver the message that there is a consequence for sin," and military funerals are appropriate because “when soldiers die in the Iraq and Afghanistan wars, their funerals are highly publicized events, with extensive media coverage of their lives, deaths and funerals.” (Brief at 3-4). As a result of Phelps' picketing, numerous states and localities have passed laws that seek to regulate funeral protests consistent with time, place and manner doctrine under the First Amendment. The case before the Court, however, does not involve a direct application of such a law, but a suit for intentional infliction of emotional distress by Albert Snyder, the father of a soldier who died in Iraq. The jury awarded Snyder over $10 million in damages, the district judge remitted the bulk of the punitive damges for a total award of $5 million, and the Fourth Circuit reversed in an opinion available here.
The case is undoubtedly controversial, as Lyle Dennison at SCOTUSblog discusses. It has attracted a wide array of amicus briefs; an interesting analysis of the amicus briefs in the case (including bestowal of the "Mugwump" award and the "Wait a Minute" award) is from ConLawProf Wilson Huhn.
Tuesday, October 5, 2010
- Voter ID. State Question Number 746 asks voters whether they approve a voter identification requirement like the one upheld in Crawford v. Marion County. Recall that the Court upheld Indiana's voter ID law in Crawford on a facial challenge, with little direct evidence of actual infringement on the right to vote. The case thus left the door open for an as-applied challenge with stronger evidence. (Indeed, such a challenge is working its way through Indiana courts on a state constitutional theory.)
- Term Limits. State Question Number 747 asks voters if they approve a constitutional amendment to impose term limits on the office of the Governor, Lieutenant Governor, Attorney General, Treasurer, Commissioner of Labor, Auditor and Inspector, and Superintendent of Public Instruction--all 8 years. The measure would limit the term of the Corporation Commission to 12 years.
- English as Official Language. State Question Number 751 would add a new provision to the constitution designating English the "common and unifying language of Oklahoma." It requires that official actions be in English, although "Native American languages could also be used."
- De-Lawyering the Appointed Members of the Judicial Nominating Commission. State Question Number 752 asks voters if they approve a constitutional amendment to require all appointed members of the Judicial Nominating Commission to be non-lawyers, and not to have lawyers in their families. The measure retains the lawyer members of the Commission, elected by the state bar.
- Public Funding Formulas. State Question Number 754 would amend the constitution so that it could not require the legislature to fund state functions based on predetermined constitutional formulas, the amount that other states spend on a function, or how much any entity spends on a function. This would be a super-amendment--unamendable by future action.
- International and Sharia Law. State Question Number 755 would amend the constitution to prohibit courts from "considering or using" international law or Sharia law.
- Health Care. State Question Number 756 would amend the constitution to prohibit requiring anyone to participate in a health care system--a nullification attempt against the federal health insurance mandate.
Monday, October 4, 2010
Con Law Prof David Achtenberg (UMKC) created an exciting new website for anyone interested in the workings of the Supreme Court on cases brought under 42 U.S.C. 1983. The site, Petition to Decision, is a "comprehensive digital archive of all the available papers of the Supreme Court Justices dealing with selected civil rights cases."
The site currently collects material on Monell v. Dep't of Social Services, Owen v. City of Independence, Oklahoma City v. Tuttle, and Pembauer v. City of Cincinnati, with more cases scheduled starting later this fall.
Achtenberg enthusiastically agreed to support others who wish to contribute to Petition to Decision or who would like to create their own similar sites on other aspects of Con Law.
This is a terrific resource; check it out.
This first Monday in October, the start of a new term of the United States Supreme Court, reminds us of all the other cases the Court has decided, including the many which have achieved iconic status. A relatively recent case in the "iconic" genre is Morse v. Frederick, 551 U.S. 393 (2007).
After all, a pretty good band (based on the music on its website) has taken its name from the case:
Bong Hits for Jesus is an eclectic mix of genres coming together in an all-out party of rock, funk, reggae and more. The name is based on a Supreme Court Free Speech case, and the band stands for freedom of speech, self-expression, and generally having a good time.
Perhaps of more interest to most ConLawProfs is a new book by James C. Foster, Bong Hits for Jesus: A Perfect Constitutional Storm in Alaska’s Capital.
Professor Foster promises an exciting tour not only of First Amendment doctrine but of the "story" behind the case and the strategies and theories of litigation - - - a real benefit when one is teaching the case. Here's the TOC:
Prologue: A Tale of Three Wars and Zero Tolerance
1. Harmonic Convergence in Juneau: [In]famous for Fifteen Minutes
2. The Tentative Tinker Rule
3. From Black Arm Bands to Colliding Tubas
4. A New Century, a Different Court
5. The Ninth Circuit Weighs In
6. No-So-Brief Battles, Not Such Odd Bedfellows
7. “Up in Smoke at the High Court”
8. Five Takes on a Single Event
9. Lost Opportunities and Failure of Imagination
Sunday, October 3, 2010
Voters in Bosnia and Herzegovina today appear to have elected three presidents with different ideas about country unity. With about three-quarters of votes counted, the likely Croat and Muslim presidents favor continued unity, while the likely Serb president has advocated separation. The BBC reports here.
Any division between the likely three presidents on the question of national unity could impair the country's efforts to join the EU and NATO.
The unusual three-member presidency is established and empowered by Article V of the Constitution of Bosnia and Herzegovina:
The Presidency of Bosnia and Herzegovina shall consist of three Members: one Bosniac and one Croat, each directly elected from the territory of the Federation, and one Serb directly elected from the territory of the Republika Srpska.
The presidents' authority extends primarily to foreign affairs, but they're also empowered to "execute decisions of the Parliamentary Assembly." Article V provides for a presidential Chair, selected from among the three in a manner determined by the Parliamentary Assembly. (The Assembly currently provides for a rotating Chair.) Article V admonishes them to make decisions by consensus, but it also contains an elaborate procedure for resolving conflict:
A dissenting Member of the Presidency may declare a Presidency Decision to be destructive of a vital interest of the Entity from the territory from which he was elected, provided that he does so within three days of its adoption. Such a Decision shall be referred immediately to the National Assembly of the Republika Srpska, if the declaration was made by the Member from that territory; to the Bosniac Delegates of the House of Peoples of the Federation, if the Declaration was made by the Bosniac Member; or to the Croat Delegates of that body, if the declaration was made by the Croat Member. If the declaration is confirmed by a two-thirds vote of those persons within ten days of the referral, the challenged Presidency Decision shall not take effect.
Friday, October 1, 2010
During this special sitting of the Supreme Court, Justice Kagan took the Judicial Oath of Office for a second time. Before the ceremony, the Justices along with President Obama gathered in the Justices' Conference Room. Following the Courtroom ceremony, Chief Justice Roberts escorted Justice Kagan down the front steps of the building for a brief photo opportunity with the press.
On August 7, 2010, Elena Kagan was sworn in as the 100th Associate Justice in a private ceremony at the Supreme Court so she could begin to participate in the work of the Court.