Saturday, July 10, 2010

Kagan on Mark Tushnet and Harold Koh: Post Confirmation Hearing Responses to Senators Questions

Supreme Court Nominee Elena Kagan has submitted her written responses to post-testimony "Questions Submitted for the Record" from Senators Jeff Sessions, Chuck Grassley, Jon Kyl, Lindsay Graham, John Cornyn, and Tom Coburn. These have been added to the materials from the Senate Judiciary Committee here.        Kagan3

Two of the more interesting interchanges involved the scholarship of Professors Mark Tushnet and Harold Koh.

Senator Tom Coburn was concerned with Kagan’s opinions of Mark Tushnet’s scholarship:

Q: You were dean of Harvard Law School when Professor Mark Tushnet was hired. Like you, Professor Tushnet also clerked for Justice Thurgood Marshall, and when he received an endowed chair position at Harvard, you introduced him and called him as “one of the world’s leading law scholars, particularly one of the world’s leading constitutional law scholars” and praised his “contributions to the world of scholarship.” In a 1981 law review article entitled “The Dilemmas of Liberal Constitutionalism, Professor Tushnet asserted that, if he were a judge, he “would decide what decision in a case was most likely to advance the cause of socialism.”

a. Is this one of Professor Tushnet’s “contributions to the world of scholarship?

Response: My introduction for Professor Tushnet was not intended to suggest my agreement with any particular aspect of his scholarship or any particular article. It was intended to recognize his general standing in the sphere of constitutional law scholarship.

b. How would you characterize such an approach to the law?

Response: If Professor Tushnet meant that a judge should decide cases based on her own policy views about the best result, then I would characterize that approach as contrary to the rule of law.

c. Would you endorse it? Why or why not?

Response: No. Judges should decide cases based on legal sources, not on policy or political views.

Coburn came back to Mark Tushnet a few questions later, regarding state action:

Professor Tushnet has recommended reconsidering the 1883 Civil Rights cases in which the Supreme Court held that the 14th Amendment prohibited only the abridgement of individual rights by the state, rather than by private individuals and institutions. The Supreme Court has stated: “It is state action of a particular character that is prohibited. … The wrongful act of an individual is simply a private wrong and if not sanctioned in some way by the state, or not done under state authority, the [individual’s] rights remain in full force.” Professor Tushnet stated:“The state-action doctrine contributes nothing but obfuscation to constitutional analysis. It works as a bogeyman because it appeals to a vague libertarian sense that Americans have about the proper relation between them and their government. It seems to suggest that there is a domain of freedom into which the Constitution doesn’t reach. We would be well rid of the doctrine.”

a. Do you agree with Professor Tushnet’s desire to be rid of the state action doctrine? Why or why not?

Response: No. The state-action doctrine has been repeatedly reaffirmed by the Supreme Court,and the decisions adopting and applying the state action doctrine are entitled to stare decisis effect. These decisions, indeed, function as a basic postulate of our constitutional system.

Coburn also asked, “Do you agree with the views of the Critical Legal Studies movement?” The simple response: “No.”

Senator John Cornyn discussed Professor Harold Hongju Koh's scholarship regarding "the difference between nationalists and transnationalists, whom, he says, 'hold sharply divergent attitudes toward transnational law,' and then asked:

As described by Professor Koh, are you a transnationalist or a nationalist? Have you ever previously expressed your position on this question? What did you say?

Response: I would not characterize myself using Professor Koh’s categories, which I do not find particularly helpful in thinking about the issues involving foreign or international law that are likely to come before the Court. I have never used these terms for any purpose.

Other interesting subjects of inquiry include Sessions asking questions regarding recusal, the Second and Eighth Amendments, and many of her memos as law clerk to Justice Thurgood Marshall; Grassley on Garcetti v. Ceballos regarding the First Amendment rights of government employees,  and the relationship between the takings clause and the taxing power, Kyl on Kagan's opinion on Arizona SB 1070 and the (then-contemplated) federal lawsuit, and Coburn's concern with Kagan's "personal lack of pro bono legal services,” comparing her unfavorably to other recent nominees, including Harriet Miers.


July 10, 2010 in Appointment and Removal Powers, Current Affairs, International, Interpretation, News, Scholarship, State Action Doctrine, Theory | Permalink | Comments (3) | TrackBack (0)

Friday, July 9, 2010

Injunction Against Deepwater Drilling Moratorium Affirmed: Judicial Financial Investments Cause Continuing Questions

In a very brief opinion, a panel of the Fifth Circuit Court of Appeals affirmed District Judge Martin Feldman's preliminary injunction of Secretary of the Interior Salazar's six month moratorium on deep water drilling issued May 28, 2010, after a report on the BP Deepwater Horizon explosion and oil "spill."

One of the three judges on the panel disagreed. Judge James Dennis wrote (in full):

I would grant the Secretary’s motion to stay the district court’s preliminary injunction pending appeal, and to this extent, I respectfully dissent from the majority’s order. I concur, however, in reserving the Secretary’s right to apply for emergency relief and ordering an expedited appeal and briefing. I will assign reasons for my dissenting view at a later date.


The Fifth Circuit's opinion did not to quell the questions being raised about the impartiality of the judges in the Fifth Circuit.   Known colloquially as the "oil and gas circuit," the Fifth Circuit has been comprised of only three states - - - Texas, Louisiana and Mississippi - - - since the early 1980s when the Eleventh Circuit was created from the "former Fifth Circuit" that also included Florida, Alabama and Georgia.  Given the composition of the federal judiciary, it is not surprising that many judges in the Fifth Circuit (including the district judges of the Circuit)  have financial and pre-judicial legal practice connections to the oil and gas industries.   This lack of uniqueness might be fatal to a Caperton v. Massey due process argument.

A new report from Alliance for Justice, provocatively entitled Judicial Gusher discusses the ties of individual judges to the energy industry, including a two page chart with specific financial information.  Issued before the Fifth Circuit panel's decision, the report specifically discusses the three judges on the panel.  Interestingly,  Judge Dennis' financial holdings in energy corporations are described as "substantial" and not unlike the other two judges.  


July 9, 2010 in Current Affairs, Due Process (Substantive), Interpretation, News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Thursday, July 8, 2010

DOMA Unconstitutional: Massachusetts Federal District Judge Finds Section 3 of Defense of Marriage Act Unconstitutional

In two decisions today,  Commonwealth of Massachusetts v. HHS  and Gill v. Office of Personnel Management, United States District Judge Joseph Tauro held section 3 of the Defense of Mariage Act (DOMA) unconstitutional.

Section 3 of DOMA, 1 USC section 7, provides:

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.

Thus, same-sex partners who are legally married pursuant to Massachusetts law are nevertheless not considered married for federal purposes.

In Commonwealth of Massachusetts v. US Dept of Health and Human Services, the Judge first found that the Commonwealth had standing to bring the lawsuit, noting that the federal "VA already informed the Massachusetts Department of Veterans’ Services that the federal government is entitled to recapture millions of dollars in federal grants if the Commonwealth decides to entomb an otherwise ineligible same-sex spouse of a veteran," and that the "Commonwealth has amassed approximately $640,661 in additional tax liability and forsaken at least $2,224,018 in federal funding because DOMA bars HHS’s Centers for Medicare & Medicaid Services from using federal funds to insure same-sex married couples." (Opinion at 21).  The Judge then merged the Tenth Amendment and Spending Clause challenges - - - "two sides of the same coin" - - - although specifically discussing and applying the classic spending clause case of South Dakota v. Dole. The Judge found that DOMA  "plainly intrudes on a core area of state sovereignty—the ability to define the marital status of its citizens," and applied First Circuit precedent regarding the test for a Tenth Amendment analysis. (Opinion at 28). Further, Judge Tauro  discussed the historical practice of marriage and family as being state, rather than federal matters, and noted:

That the Supreme Court, over the past century, has repeatedly offered family law as an example of a quintessential area of state concern, also persuades this court that marital status determinations are an attribute of state sovereignty. For instance, in [United States v. ] Morrison, the Supreme Court noted that an overly expansive view of the Commerce Clause could lead to federal legislation of “family law and other areas of traditional state regulation since the aggregate effect of marriage, divorce, and childrearing on the national economy is undoubtedly significant.” Similarly, in Elk Grove Unified Sch. Dist. v. Newdow, the Supreme Court observed “that ‘[t]he whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.’”

Opinion at 32.  Thus, the Judge concluded that by enacting and enforcing DOMA, the federal government "encroaches upon the firmly entrenched province of the state, and, in doing so, offends the Tenth Amendment."  Opinion at 36.

In the companion case of  Gill v. Office of Personnel Management, (opinion available above), the Judge considered the challenge of seven plaintiffs who had been in same-sex marriages in Massachusetts and were denied federal benefits, including survivors’ benefits.  Judge Tauro outlined the plaintiffs arguments that the classification should merit strict scrutiny under equal protection clause doctrine, but held that the court “need not address these arguments, however, because DOMA fails to pass constitutional muster even under the highly deferential rational basis test,” because “there exists no fairly conceivable set of facts that could ground a rational relationship” between DOMA and a legitimate government objective, and that therefore DOMA violates the core constitutional principles of equal protection. Opinion at 21.

The Judge wrote that the Congressional House Report identifies four interests which Congress sought to advance through the enactment of DOMA: (1) encouraging responsible procreation and child-bearing, (2) defending and nurturing the institution of traditional heterosexual marriage, (3) defending traditional notions of morality, and (4) preserving scarce resources.  

The Judge analyzed these interests finding them not legitimate, but not before noting that for "purposes of this litigation, the government has disavowed Congress’s stated justifications for the statute." Opinion at 23. 

The Obama Administration's stance in defending DOMA has been watched closely; we discussed it here, and in the California litigation here.   According to Judge Tauro, in essence, the government now argued that "the Constitution permitted Congress to enact DOMA as a means to preserve the 'status quo,' pending the resolution of a socially contentious debate taking place in the states over whether to sanction same-sex marriage." Opinion at 27.  Judge Tauro also found that interest not legitimate, echoing some of the Tenth Amendment arguments in the companion case, Commonwealth of Massachusetts v. HHS, regarding the federal governments role - - - or lack of role - - - in marriage and family law.

The Judge also found that the 'status quo' rationale was not rationally served by DOMA:

The states alone are empowered to determine who is eligible to marry and, as of 1996 [the year DOMA was passed] no state had extended such eligibility to same-sex couples. In 1996, therefore, it was indeed the status quo at the state level to restrict the definition of marriage to the union of one man and one
woman. But, the status quo at the federal level was to recognize, for federal purposes, any marriage declared valid according to state law. Thus, Congress’ enactment of a provision denying federal recognition to a particular category of valid state-sanctioned marriages was, in fact, a significant departure from the status quo at the federal level.

Opinion at 32. Explicitly accepting the Plaintiffs’ argument, Judge Tauro, reasoned that "DOMA seems to inject complexity into an otherwise straightforward administrative task by sundering the class of state sanctioned marriages into two, those that are valid for federal purposes and those that are not.” Opinion at 35.  Regarding the rational relationship argument, the Judge concluded that DOMA was based on "irrational prejudice" and therefore violated the equal protection clause as applicable to the federal government through the Fifth Amendment.

Thus, this federal district judge finds DOMA's section 3 unconstitutional, a ruling that will have great import for Massachusetts same-sex married couples and the state of Massachusetts, and which could be used persuasively in other states such as Iowa which allow same-sex marriage.

Whether or not the Obama Administration will appeal the ruling will be closely watched.


July 8, 2010 in Cases and Case Materials, Current Affairs, Due Process (Substantive), Equal Protection, Family, Fundamental Rights, News, Recent Cases, Sexual Orientation, Sexuality, Spending Clause, State Constitutional Law, Tenth Amendment | Permalink | Comments (4) | TrackBack (0)

Cato Debate on Electoral College

The Cato Institute is hosting a policy forum today on the electoral college featuring Tara Ross, author of Enlightened Democracy: The Case for the Electoral College and John Koza, the founder of the National Popular Vote Plan.  The forum is moderated by Roger Pilon, Cato's Vice President for Legal Affairs.

Here's the description:

The Electoral College has been a staple of American presidential elections since the nation's founding, but it may not be for long: a new legislative effort has been gaining momentum in state legislatures and could soon fundamentally change presidential elections as we know them.  A California-based group, National Popular Vote, hopes to convince a critical mass of state legislatures to sign an interstate compact that will dictate a new method of allocating presidential electors: rather than states allocating electors as they do now, NPV wants states to give their electors to the winner of the national popular vote.  The compact has been approved in five states (61 electoral votes) and is currently being considered in three other states (46 electoral votes).  Three additional state legislatures approved the compact but did not receive gubernatorial approval (62 electoral votes).  The compact goes into effect when states holding 270 electoral votes have signed the agreement.  At this critical moment in the progress of NPV's legislation, Tara Ross and John R. Koza will debate the benefits and detriments of both NPV and the Electoral College.  Should the Electoral College be retained?  If not, is NPV's solution a good one, or might there be unintended logistical ramifications?  Should Electoral College opponents instead go through the formal constitutional amendment process?

We last posted on Electoral College issues here.


July 8, 2010 in Conferences, Elections and Voting, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 7, 2010

Georgia District Judge Finds Georgia Legislature Violated Equal Protection Clause by Terminating a Transgendered Employee

In an extensive opinion, United States District Judge Richard Story of the Northern District of Georgia has granted summary judgment in favor of a former employee of the Georgia General Assembly on the basis of the Equal Protection Clause of the Fourteenth Amendment.   Picture 1

The plaintiff, Vandiver Elizabeth Glenn, formerly known as Glenn Morrison, was an editor at the Georgia General Assembly's Office of Legislative Counsel, but was terminated when she conveyed her intent to transition from a man to a woman. 

The District Judge applied intermediate scrutiny, holding that "while transsexuals are not members of a protected class based on sex, those who do not conform to gender stereotypes are members of a protected class based on sex," and citing, after extensive analysis, to the Title VII case of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (Opinion at 30-31).   The Judge therefore held that intermediate scrutiny applied:

Defendant must “demonstrate an ‘exceedingly persuasive justification’” for her
termination.  Defendant may only satisfy the burden of intermediate scrutiny by “showing at least that the classification serves ‘important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives.’”

Opinion at 36 (citations omitted).  However, the Judge noted that the Defendant did not argue that his actions survived intermediate scrutiny, but based its entire argument on its contention that a sex-based classification analysis was not appropriate. 

The Judge nevertheless analyzed the Defendant's arguments made, including its asserted interest that terminating the employee was "legitimate" to prevent future litigation, especially regarding restrooms.  The Judge found this was not an exceedingly persuasive justification.  The Judge also considered the Defendant's cursory claim that the Georgia OLC needed to have the confidence of the state legislators of Georgia, concluding:

To the extent that the record contains any evidence that legislators would lose “confidence” in the OLC, it is in the form of  [ a ] statement that some legislators would believe that Glenn’s gender transition was immoral, unnatural, and “ultraliberal.”  Even if this were the case, avoiding the anticipated negative reactions of others cannot serve as a sufficient basis for discrimination and does not constitute an important government interest.

Opinion at 42.

The importance of intermediate scrutiny - - - and the Defendant's failure to adequately argue the issue - - - is highlighted by the Judge's finding that the Plaintiff's "Gender Identity Disorder" claim merited only rational basis scrutiny and survived the constitutional challenge.  

ConLawProfs looking for an example - - - or counter-example - - - of argument methodology in equal protection doctrine should find this Opinion especially interesting.


July 7, 2010 in Cases and Case Materials, Disability, Equal Protection, Gender, Sexuality, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Participatory Democracy Theorists: Panel of Interest

This panel discussion (evening of July 8 in NYC) should be of interest to ConLawProfs whose work includes notions of participatory democracy. 

6a00d8345158e269e20133f218d63b970b-320wi From the panel description:

The fantasy of participation is a powerful one, postulating, as it does, the invitation and inclusion of everyone, everywhere. The Internet, we are told, makes this dream a reality, erasing borders and distinctions, smoothing out differences and hierarchies. We are all equal now, because we believe everyone’s voice can be heard. Political theorist Jodi Dean calls this “communicative capitalism,” an ideological formation that fetishizes speech, opinion, and participation.

With participation now a dominant paradigm, structuring social interaction, art, activism, the architecture of the city, and the economy, we are all integrated into participatory structures whether we want to be or not. How are artists and activists navigating the participation paradigm, mapping the limits of collaboration, and modeling participatory forms of critical engagement?

More information here. 

If you can't make the presentation, there are a host of other events during the exhibit and you could (should!) add Professor Dean's website and books (especially Democracy and other Neo-Liberal Fantasies) to your summer reading list.


July 7, 2010 in Books, Conferences, Interpretation, Scholarship, Theory, Web/Tech | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 6, 2010

DOJ Files Complaint Against Arizona SB 1070 Alleging Statute Unconstitutional: Analysis

Azdhometitle4 As anticipated, the Department of Justice has filed a complaint in Arizona federal court seeking a declaration and injunction that Arizona SB 1070, the controversial statute signed into law April 23 regarding immigration is unconstitutional.  The DOJ complaint has three causes of action: the supremacy clause, preemption, and the [dormant] commerce clause.  

With the complaint, the DOJ has filed a motion for preliminary injunction and supporting memorandum [available here].  The DOJ memo concentrates on the preemption argument as the basis for the likelihood to prevail on the merits prong of the preliminary injunction standard.  (We've previously discussed the preemption arguments here).  The DOJ argues different types of preemption, including field and conflict:

In enacting a state policy of “attrition through enforcement,” Arizona’s S.B. 1070 ignores every objective of the federal immigration system, save one: the immediate apprehension and criminal sanction of all unlawfully present aliens. See S.B. 1070 § 1. Arizona’s one-size-fits-all approach to immigration policy and enforcement undermines the federal government’s ability to balance the variety of objectives inherent in the federal immigration system, including the federal government’s focus on the most dangerous aliens. By requiring local police officers to engage in maximum inquiry and verification (on pain of civil suit) and by providing for the conviction and incarceration of certain foreign nationals in Arizona for their failure to register, for entering or traveling throughout the state using commercial transportation, or for soliciting work, the “balance” struck by S.B. 1070 is not only different from that of the federal government, but it will interfere with the federal government’s ability to administer and enforce the immigration laws in a manner consistent with the aforementioned concerns that are reflected in the INA. Despite the statute’s self serving claim that it “shall be implemented in a manner consistent with federal laws regulating immigration,” S.B. 1070 § 12, the act mandates a conflicting, Arizona-specific immigration policy – “attrition through enforcement” – and prescribes various provisions that implement that policy in conflict with federal priorities. To permit a hodgepodge of state immigration policies, such as the one Arizona has attempted in S.B. 1070, would impermissibly interfere with the federal government’s balance of uniquely national interests and priorities in a number of ways.

DOJ Memo at 23 (emphasis added).  Additionally, the memo argues that the state law interferes with United States foreign relations and foreign affairs.

The memo also highlights specific provisions of SB 1070 that it argues are preempted. The memo argues sections 2 and 6 are preempted because their mandatory requirements for determining immigration status conflict with federal law and priorities: section 2 will result in the harassment of lawfully present aliens and is therefore at odds with congressional objectives and will "burden federal resources and impede federal enforcement and policy priorities;” section 6 extends Arizona’s “warrantless arrest authority to out-of-state ‘removable’ offenses and is preempted because it will lead to the harassment of aliens.”  Section 3, the “complete or carry an alien registration document” provision is preempted because interferes with comprehensive federal alien registration law and “seeks to criminalize unlawful presence and will result in the harassment of aliens.”  Section 4, amending Arizona’s alien smuggling statute is preempted because it conflicts with federal law.  Section 5, the state criminal sanction against unauthorized aliens who solicit or perform work is preempted by the federal employer sanctions scheme, and the “transporting, harboring, or concealing provision” violates preemption and dormant commerce clause principles (the item of commerce in question being the “alien” him or herself). 

This high-profile complaint joins the other lawsuits filed alleging the unconstitutionality of SB1070, including on equal protection grounds.

{Update: Arizona immigration statute partially enjoined; here}


July 6, 2010 in Commerce Clause, Current Affairs, Dormant Commerce Clause, Federalism, Foreign Affairs, Fundamental Rights, News, Preemption, Race, Supremacy Clause | Permalink | Comments (1) | TrackBack (0)

Federalists' Supreme Court Round-Up

Former Solicitor General Gregory Garre will deliver the Federalist Society's 2010 Supreme Court Round Up this Friday, July 9, from noon to 2:00 p.m. at the Mayflower Hotel in Washington, D.C.  Register here for $45, including lunch.

The Federalists report that Theodore Olson is unable to deliver the Round Up for the first time in a decade due to a sudden, unavoidable conflict.


July 6, 2010 in Interpretation, News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, July 5, 2010

Cato's Take on Congressional Response to Citizens United

The Cato Institute last week issued its free-market analysis of the DISCLOSE Act, Senator Schumer and Representative Van Hollen's response to Citizens United, the Supreme Court's decision invalidating federal restrictions on direct corporate spending on campaign ads under the First Amendment.  The Policy Analysis, titled The DISCLOSE Act, Deliberation, and the First Amendment, by John Samples, argues that the congressional response to Citizens United includes a set of poorly conceived regulations of capital and speech markets that won't substantially benefit shareholders or voters but will chill political speech.

As we posted here (with links to the bills), the DISCLOSE Act increases corporate reporting requirements (upheld under Citizens United) and limits direct campaign spending by government contractors and foreign corporations. 

Samples argues that these new proposed regulations interfere with capital markets and the market in political speech, that they won't substantially benefit either shareholders or voters, and that they will chill political speech.  From the Executive Summary:

DISCLOSE mandates disclosure of corporate sources of independent spending on speech, putatively in the interest of shareholders and voters.  However, it is unlikely that either shareholders or voters would be made better off by this legislation.  Shareholders could demand and receive such disclosure without government mandates, given the efficiency of capital markets.  The benefits of such disclosure for voters are likely less than assumed, while the costs are paid in chilled speech and in less rational public deliberation. . . .  [Moreover,] the case for prohibiting speech by [government contractors, TARP recipients, and companies managed by foreign nationals] seems flawed.  In general, DISCLOSE exploits loopholes in Citizens United limits on government control of speech to contravene the spirit of that decision and the letter of the First Amendment.


July 5, 2010 in Fundamental Rights, Recent Cases | Permalink | Comments (0) | TrackBack (0)

NYT Editorial on Roberts Court Activism

The New York Times editorializes on the Roberts' Court "activism":  Robertsoath3

We do not argue that precedent must be worshiped and upheld at all costs. If that were the case, as Justice Roberts noted, segregation would still be legal and minimum-wage laws unconstitutional. But when the Brown v. Board of Education decision in 1954 overturned Plessy v. Ferguson from 1896 and outlawed segregation, it came after many years of relentless legal efforts against Jim Crow by Thurgood Marshall and many others. It was clear that the legal landscape was changing.

When the Roberts court overruled precedent in the Citizens United case, it did so far more abruptly. The dissenters, led by Justice John Paul Stevens, said the majority “blazes through our precedents” in a “dramatic break from our past.” It was nothing other than judicial activism when the court five months later stepped directly into the gubernatorial race in Arizona, cutting off matching funds to candidates participating in the state’s campaign finance system. The message to other states and cities with similar systems was clear: Watch out. When the Roberts court has a goal in mind, niceties like an actual political campaign cannot be allowed to get in the way.

The editorial was not limited to Citizens United:

the problematic decisions continue to leave us worried about upcoming terms, where more decisions about fundamental rights await. In the last month alone, majorities on the court said gun ownership was a fundamental Second Amendment right that applies to states and cities, while reducing the First Amendment rights of those who try to pacify terrorist groups.

For more, if by now dated, exploration of "conservative judicial activism," a good primer is Thomas Keck's   The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism (U Chicago, 2004).


July 5, 2010 in Cases and Case Materials, Current Affairs, Fundamental Rights, History, Interpretation, Recent Cases | Permalink | Comments (1) | TrackBack (0)

Sunday, July 4, 2010

Supreme Court Review Panel: American Constitution Society

American Constitution Society Panel:  Supreme Court Term 2009-2010 with Moderator, Thomas C. Goldstein, Partner, Akin Gump Strauss Hauer & Feld, LL, and panelists: Paul Butler, Associate Dean for Faculty Development and Carville Dickinson Benson Research Professor of Law, George Washington University Law School; Paul D. Clement, Partner, King & Spalding, and former Solicitor General of the United States; Doug Kendall, President, Constitutional Accountability Center; Elisa Massimino, President and Chief Executive Officer, Human Rights First; Andrew J. Pincus, Partner, Mayer Brown LLP, and Visiting Lecturer in Law, Yale Law School; Virginia A. Seitz, Partner, Sidley Austin LLP; and Monica Youn, Counsel, Brennan Center for Justice at New York University School of Law's Democracy Program.


July 4, 2010 in Conferences, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Declaration of Independence Thoughts: Kagan Hearing and (White Male) Philosophers

Adopted by the Continental Congress on July 4, 1776, the Declaration of Independence is the foundational text for the July Fourth "Independence Day" national holiday in the United States. Among the discussions of the document this year, two stand out. 

First, there is the colloquy between Senator Charles Grassley (R-Iowa) on Day Two of the Kagan Confirmation hearings, in which Grassley invokes the Declaration of Independence to raise the issue of Kagan's views on the Second Amendment and the Court's interpretation in Heller and McDonald:

GRASSLEY: Well, it’s basic to our Declaration of Independence that says we’re endowed by our creator with certain -- certain individual rights, among them, you know, what it says, and we aren’t endowed by our government. So the question here is, are we endowed by our Constitution with this right or did it exist before the Constitution existed?
KAGAN: Well, Senator Grassley, I do think that my responsibility would be to apply the
Constitution as understood and previously applied by the court, and that means as understood and -- and interpreted by the court in Heller, and that’s what I would do. So I think that the -- the fundamental legal question would be whether -- that a case would present would be whether the Constitution guarantees an individual right to bear arms, and Heller held that it did, and that’s good precedent going forward.
GRASSLEY: I know the Declaration of Independence is not the law of the land, but it does express a philosophy of why we went to war and why our country exists. And you understand, I hope, that if we’re endowed by our government with certain rights, the government can take them away from us, whereas if we possess them ourselves and give them up from time to time to the government to exercise in our stead, then the government can’t take away something that’s inherently ours.
Do you believe that the Second Amendment right to bear arms is a fundamental right?
KAGAN: Senator Grassley, I think that that’s what the court held in McDonald.
GRASSLEY: And you agree with it?
KAGAN: Good precedent going forward. 

[Transcript (available from WaPo here) Day Two, June 29, 2010, at 50]. 

Second, there is the feature from the New York Times, "Thoughts on a Declaration," in which the editors asked contributors to The Stone, “What is the philosophical theme, or themes, in the Declaration of Independence that should be recalled in today’s America?”   The responses from philosophers Arthur C. Danto, Todd May, and J.M. Bernstein are then provided.   While Todd May writes movingly of equality focusing on undocumented workers and Bernstein invokes Janis Joplin, the selection of three white male philosophers to answer a query about "today's America" is a rather startling statement. 


[image: portraits and autographs of the signers of the Declaration of Independence, via]

The Declaration of Independence may have been exclusively signed by white men, but as we interpret the document's philosophical relevance, is this exclusivity "good precedent going forward"?  


July 4, 2010 in Current Affairs, Fundamental Rights, Gender, History, Interpretation, Race, Recent Cases, Weblogs | Permalink | Comments (0) | TrackBack (0)

D.C. Circuit Rules Against Government in Guantanamo Detainee Appeal

A three-judge panel of the D.C. Circuit ruled that the government failed to support its argument that Guantanamo detainee Belkacem Bensayah was part of al Qaeda, but the panel gave the government a second bite at the apple by remanding the case to the D.C. District to consider any additional evidence the government might submit.  The case, Bensayah v. Obama, was decided June 28, but just released last week.

The lower court ruled in favor of the government and upheld detention under the government's theory that Bensayah provided support to al Qaeda.  But the government changed its argument on appeal: it argued to the D.C. Circuit that Bensayah was detainable because he was part of al Qaeda.  (The change may have related to an internal administration dispute on the basis for detention, as reported here by the New York Times.)

The D.C. Circuit ruled that the government's evidence that supported the district court's ruling that Bensayah provided support to al Qaeda was insufficient to meet the higher standard that Bensayah was part of al Qaeda.  We don't know precisely how insufficient, though, because a good part of the evidence is redacted.  But the panel provides some clues in its critical account of the evidence between pages 13 and 17 of the opinion (linked above).

The ruling comes on the heels of another ruling against the government released just under a month ago.  In that case, involving Yemeni Mohamed Mohamed Hassan Odaini, the district court detailed the administration's foot-dragging and shocking continued detention in the face repeated recommendations for release by the Defense Department itself.


July 4, 2010 in Executive Authority, Recent Cases, War Powers | Permalink | Comments (0) | TrackBack (0)