Monday, April 18, 2011

Court Declines to Hear Uighur Case (Again)

The Supreme Court today denied cert. in Kiyemba v. Obama, the case involving the Chinese Muslims held without lawful cause for seven years at Guantanamo Bay.

The petitioners sought release into the United States.  The district court ordered release, but the D.C. Circuit reversed.  The Supreme Court first granted cert. on the question whether a district court may order release into the United States where no other remedy is available. 

But the Court remanded after learning that other remedies were available--that the government offered, and the petitioners rejected, at least two offers of resettlement.  The D.C. Circuit reinstated its original opinion as modified, and the petitioners again sought cert.

The Court today declined to take the case.  Justice Breyer issued a statement, joined by Justices Kennedy, Ginsburg, and Sotomayor, concluding:

the lack of any meaningful challenge as to [the appropriateness of the Government's resettlement offers], and the Government's uncontested commitment to continue to work to resettle petitioners transform petitioners' claim.  Under present circumstances, I see no Government-imposed obstacle to petitioners' timely release and appropriate resettlement.  Accordingly, I join in the Court's denial of certiorari.  Should circumstances materially change, however, petitioners may of course raise their original issue (or related issues) again in the lower courts and in this Court.

(The statement appears at the end of today's order list.)

The denial today ends this chapter (and perhaps the entire book) on the Uighurs' judicial challenges to their confinement at Guantanamo Bay.


April 18, 2011 in Cases and Case Materials, Executive Authority, Foreign Affairs, Habeas Corpus, News, Separation of Powers, War Powers | Permalink | Comments (1) | TrackBack (0)

Standing to Challenge Residency Requirement for Guns

The D.C. Circuit ruled on Friday that a U.S. citizen residing in Canada has standing to challenge the federal law prohibiting a non-resident from buying a gun.

18 U.S.C. Sec. 922(a)(9) makes it unlawful for "any person . . . who does not reside in any State to receive any firearms unless such receipt is for lawful sporting purposes."  The ATF form Firearms Transaction Record Part I--Over the Counter, requires gun purchasers to give their state of residence.  (See Question 13 on the form.)

The plaintiff in the case, Stephen Dearth, alleged that he lives in Canada and no longer maintains a residence in the U.S.  He says that he tried twice to purchase a gun, but was foiled when he could not provide an answer to Question 13.  He sued for declaratory and injunctive relief.

The government argued that Dearth couldn't show a continuing harm: It never denied his application; Dearth didn't claim a right to a "permit" or "license" by the government; and Dearth stated no firm plans to visit the U.S.

The court rejected these arguments.  It held that Dearth's inability to complete the application was harm enough (even if the government didn't ever deny the application), and that Dearth's claim of a right to possess a gun was sufficient (and that there's no requirement that Dearth claim a right to a permit or license).  It also held that Dearth's claims that he intends to visit his friends in the U.S. and to store his guns at his relatives' home in the U.S. satisfied the requirement in Lujan v. Defenders of Wildlife, 504 U.S. at 564, that a prospective injury be sufficiently "actual or imminent" (and not a "some day" intention).


April 18, 2011 in Cases and Case Materials, News, Second Amendment, Standing | Permalink | Comments (0) | TrackBack (0)

Footnote of the Day: Not Worth a Footnote?

The sole footnote in Justice Scalia's opinion concurring in part and concurring in the judgment of Webster v. Reproductive Health Services, 492 U.S. 490 (1989) may not be worthwhile, at least according to Scalia's own assessment within the footnote.  Continuing with our theme of the footnotes for Saturday and Sunday, it involves a disagreement between Justices Scalia and O'Connor.  

O'Connor Scalia In the text of his opinion in Webster, Scalia wrote that "It was an arguable question today whether [the section] of the Missouri law contravened this Court's understanding of Roe v. Wade, * and I would have examined Roe rather than examining the contravention."

 Here is the * footnote:

That question, compared with the question whether we should reconsider and reverse Roe, is hardly worth a footnote, but I think Justice O'Connor answers that incorrectly as well. In Roe v. Wade, 410 U.S. 113, 165-166 (1973), we said that "the physician [has the right] to administer medical treatment according to his professional judgment up to the points where important state interests provide compelling justifications for intervention." We have subsequently made clear that it is also a matter of medical judgment when viability (one of those points) is reached. "The time when viability is achieved may vary with each pregnancy, and the determination of whether a particular fetus is viable is, and must be, a matter for the judgment of the responsible attending physician." Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 64 (1976). Section 188.029 conflicts with the purpose and hence the fair import of this principle because it will sometimes require a physician to perform tests that he would not otherwise have performed to determine whether a fetus is viable. It is therefore a legislative imposition on the judgment of the physician, and one that increases the cost of an abortion.

Justice O'Connor would nevertheless uphold the law because it "does not impose an undue burden on a woman's abortion decision." Ante, at 530. This conclusion is supported by the observation that the required tests impose only a marginal cost on the abortion procedure, far less of an increase than the cost-doubling hospitalization requirement invalidated in Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983). See ante, at 530-531. The fact that the challenged regulation is less costly than what we struck down in Akron tells us only that we cannot decide the present case on the basis of that earlier decision. It does not tell us whether the present requirement is an "undue burden," and I know of no basis for determining that this particular burden (or any other for that matter) is "due." One could with equal justification conclude that it is not. To avoid the question of Roe v. Wade's validity, with the attendant costs that this will have for the Court and for the principles of self-governance, on the basis of a standard that offers "no guide but the Court's own discretion," Baldwin v. Missouri, 281 U.S. 586, 595 (1930) (Holmes, J., dissenting), merely adds to the irrationality of what we do today.

Similarly irrational is the new concept that Justice O'Connor introduces into the law in order to achieve her result, the notion of a State's "interest in potential life when viability is possible." Ante, at 528. Since "viability" means the mere possibility (not the certainty) of survivability outside the womb, "possible viability" must mean the possibility of a possibility of survivability outside the womb. Perhaps our next opinion will expand the third trimester into the second even further, by approving state action designed to take account of "the chance of possible viability."



April 18, 2011 in Abortion, Due Process (Substantive), Family, Federalism, Fourteenth Amendment, Games, Gender, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Sunday, April 17, 2011

Footnote of the Day: Disagreements over Tradition in Substantive Due Process

In Michael H. v. Gerald D., 491 U.S. 110 (1989), the Court upheld a statutory presumption that a man married to a woman was the father of any child to which she gave birth.  Justice Scalia wrote the plurality opinion, joined by Justices Rehnquist, O'Connor, and Kennedy.  However, only Justice Rehnquist joined the footnote in which Scalia argued that in order to determine whether a right is fundamental (and thus protected), courts should focus on the most specific level of tradition that can be identified.  In footnote 6, Scalia wrote:

Justice Brennan [dissenting] criticizes our methodology in using historical traditions specifically relating to the rights of an adulterous natural father, rather than inquiring more generally “whether parenthood is an interest that historically has received our attention and protection.” Post, at 2350. There seems to us no basis for the contention that this methodology is “nove[l],” post, at 2351. For example, in Bowers v. Hardwick, 478 U.S. 186 (1986), we noted that at the time the Fourteenth Amendment was ratified all but 5 of the 37 States had criminal sodomy laws, that all 50 of the States had such laws prior to 1961, and that 24 States and the District of Columbia continued to have them; and we concluded from that record, regarding that very specific aspect of sexual conduct, that “to claim that a right to engage in such conduct is ‘deeply rooted in this Nation's history and tradition’ or ‘implicit in the concept of ordered liberty’ is, at best, facetious.” Id., at 194. In Roe v. Wade, 410 U.S. 113 (1973), we spent about a fifth of our opinion negating the proposition that there was a longstanding tradition of laws proscribing abortion. Id. at 129-141.

We do not understand why, having rejected our focus upon the societal tradition regarding the natural father's rights vis-à-vis a child whose mother is married to another man, Justice Brennan would choose to focus instead upon “parenthood.” Why should the relevant category not be even more general-perhaps “family relationships”; or “personal relationships”; or even “emotional attachments in general”? Though the dissent has no basis for the level of generality it would select, we do: We refer to the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified. If, for example, there were no societal tradition, either way, regarding the rights of the natural father of a child adulterously conceived, we would have to consult, and (if possible) reason from, the traditions regarding natural fathers in general. But there is such a more specific tradition, and it unqualifiedly denies protection to such a parent.

One would think that Justice Brennan would appreciate the value of consulting the most specific tradition available, since he acknowledges that “[e]ven if we can agree ... that ‘family’ and ‘parenthood’ are part of the good life, it is absurd to assume that we can agree on the content of those terms and destructive to pretend that we do.” Post, at 2351. Because such general traditions provide such imprecise guidance, they permit judges to dictate rather than discern the society's views. The need, if arbitrary decisionmaking is to be avoided, to adopt the most specific tradition as the point of reference-or at least to announce, as Justice Brennan declines to do, some other criterion for selecting among the innumerable relevant traditions that could be consulted-is well enough exemplified by the fact that in the present case Justice Brennan's opinion and Justice O'Connor's opinion, post, p. 2346, which disapproves this footnote, both appeal to tradition, but on the basis of the tradition they select reach opposite results. Although assuredly having the virtue (if it be that) of leaving judges free to decide as they think best when the unanticipated occurs, a rule of law that binds neither by text nor by any particular, identifiable tradition is no rule of law at all.

 Finally, we may note that this analysis is not inconsistent with the result in cases such as Griswold v. Connecticut, 381 U.S. 479 (1965), or Eisenstadt v. Baird, 405 U.S. 438 (1972). None of those cases acknowledged a longstanding and still extant societal tradition withholding the very right pronounced to be the subject of a liberty interest and then rejected it. Justice Brennan must do so here. In this case, the existence of such a tradition, continuing to the present day, refutes any possible contention that the alleged right is “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” Snyder v. Massachusetts, 291 U.S. 97, 105 (1934), or “implicit in the concept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325 (1937).

Scalia oconnor For her part, Justice O'Connor, joined by Justice Kennedy, wrote:

I concur in all but footnote 6 of Justice Scalia's opinion. This footnote sketches a mode of historical analysis to be used when identifying liberty interests protected by the Due Process Clause of the Fourteenth Amendment that may be somewhat inconsistent with our past decisions in this area. See Griswold v. Connecticut, 381 U.S. 479 (1965); Eisenstadt v. Baird, 405 U.S. 438 (1972). On occasion the Court has characterized relevant traditions protecting asserted rights at levels of generality that might not be “the most specific level” available. Ante, at 2344, n. 6. See Loving v. Virginia, 388 U.S. 1, 12 (1967); Turner v. Safley, 482 U.S. 78, 94 (1987); cf. United States v. Stanley, 483 U.S. 669, 709 (1987) (O'Connor, J., concurring in part and dissenting in part). I would not foreclose the unanticipated by the prior imposition of a single mode of historical analysis. Poe v. Ullman, 367 U.S. 497, 542 (1961) (Harlan, J., dissenting).

The proper role and analysis of "tradition" in substantive due process analysis continues to provoke disagreement more than two decades later.

with J. Zak Ritchie
(and suggested by several ConLawProfs)

April 17, 2011 in Due Process (Substantive), Family, Fundamental Rights, Games, Gender, History, Reproductive Rights, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Saturday, April 16, 2011

President Obama's Signing Statement on Spending Bill

President Obama issued a signing statement yesterday on H.R. 1473, the FY 2011 budget bill recently negotiated between the White House and Congress that avoided a shut-down and will keep government operating through the fiscal year.

President Obama took issue with two provisions in the bill: the restriction on use of funds to transfer Guantanamo detainees to the U.S. (thus preventing trials in Article III tribunals); and the restriction on use of funds to pay salaries of presidential advisors, the so-called "czars." 

The former restriction isn't new, and the administration previously registered its constitutional objections to the restriction.  In short, the administration says (correctly) that Congress can't interfere with its ability to execute the law by trying detainees for violation of U.S. law in regular U.S. courts.  President Obama's statement yesterday reiterates the core objection to the restriction on transfers and says that the administration will work to change it (while respecting it in the meantime).

The latter restriction--the restriction on use of funds to pay for presidential advisors--is new.  Section 2262 of the bill reads as follows:

None of the funds made available by this division may be used to pay the salaries and expenses of the following positions:

(1) Director, White House Office of Health Reform.

(2) Assistant to the President for Energy and Climate Change.

(3) Senior Advisor to the Secretary of the Treasury assigned to the Presidential Task Force on the Auto Industry and Senior Counselor for Manufacturing Policy.

(4) White House Director of Urban Affairs.

The restriction raises serious separation-of-powers concerns.  On the one hand, opponents claim that these positions are "officers" that require Senate advice and consent (confirmation) under the Appointments Clause.  Without Senate confirmation, appointments to these positions are unconstitutional.  On the other hand, many argue that these positions are merely presidential advisors that do not require Senate confirmation, and that congressional restrictions on the President's authority to make these appointments violates core Article II functions.  In between these two poles: The positions may be "inferior officers," and then the debate is whether Congress has properly vested authority to appoint them under the Appointments Clause.

We explored these questions with regard to the so-called "Pay Czar" here, here, here, and here (this last post linking to the Federalist Society on-line debate in which I joined Martin Flaherty and Michael McConnell).

President Obama's signing statement raises and explains his constitutional objections in some detail, consistent with his commitment to issue such statements only sparingly, and to explain them well when he does it.  He also points out that his statements on this legislation are necessary because of the nature of the bill: It had to get his signature on Friday to keep the government in business.  A veto would have shut the government down until the White House and Congress could have worked these issues out.  (President Obama has used constitutional signing statements much less frequently, and much less aggressively, than his predecessor.  But he's still used them.)

The Bill's urgency and the President's transparency don't mitigate the core separation-of-powers problem in constitutional signing statements themselves.  When the President signs legislation, but declines to abide by pieces of it on constitutional grounds, that looks an awful lot like a line-item veto.  If so, the signing statement itself runs up against the constitutional requirements for bicameralism and presentment--that the same piece of legislation has to pass both houses and receive the President's signature--no matter how necessary or well explained it is.


April 16, 2011 in Appointment and Removal Powers, Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Footnote of the Day: Plurality Footnote on Habeas for State Prisoners

Article I, section 9, of the United States Constitution provides that "The privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."  However, Congress has often restricted habeas corpus, especially for state prisoners.  In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act, (AEDPA), placing a new restriction on the power of federal courts to grant writs of habeas corpus to state prisoners. In 28 U.S.C. § 2254(d)(1) Congress prohibited a federal court from granting an application for a writ of habeas corpus with respect to a claim adjudicated on the merits in state court unless that adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.''

In Williams v. Taylor, 529 U.S. 362 (2000), the Court considered an ineffective assistance of counsel claim under Strickland v. Washington in the penalty phase of a capital case tried in Virginia.  The trial court granted the state post-conviction relief, the state Supreme Court reversed, and in subsequent federal habeas proceeding, the district judge granted habeas relief and the Fourth Circuit reversed.

With such a history, it is perhaps no surprise that the United States Supreme Court opinions were fractured.  Justice Stevens delivered the Opinion for the Court, except for Part II of his Opinion. 

Scalia oconnor Justice O'Connor delivered the Opinion of the Court in Part II, except for "the footnote," with which Justice Scalia disagreed.  The cause of the disagreement between Justices Scalia and O'Connor seems a bit anticlimactic:

footnote *

The legislative history of § 2254(d)(1) also supports this interpretation. See, e.g., 142 Cong. Rec. 7799 (1996) (remarks of Sen. Specter) (``[U]nder the bill deference will be owed to State courts' decisions on the application of Federal law to the facts. Unless it is unreasonable, a State court's decision applying the law to the facts will be upheld''); 141 Cong. Rec. 14666 (1995) (remarks of Sen. Hatch) (``[W]e allow a Federal court to overturn a State court decision only if it is contrary to clearly established Federal law or if it involves an `unreasonable application' of clearly established Federal law to the facts'').

The "interpretation" being supported is "Indeed, we used the almost identical phrase ``application of law'' to describe a state court's application of law to fact in the certiorari question we posed to the parties in Wright [v. West, 505 U.S. 277(1992)]."*

While this may not seem worthy of a disagreement, this is not the first time Justices Scalia and O'Connor could not reach an accord over a footnote.  In the next segment of "footnote of the day,"  April 17, a more substantive disagreement between the Justices.


April 16, 2011 in Congressional Authority, Criminal Procedure, Federalism, Games, Opinion Analysis, Sixth Amendment, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, April 15, 2011

Voting Restricted to Males for Leadership in Religious Council that Receives State Funding: Constitutional?

Religious communities?  Gender?  Voting rights?  State action? 

A host of constitutional law problems are raised by the following:

According to the bylaws of the Crown Heights Jewish Community Council, a social service agency and community pillar that has received millions of dollars in government grants over the years, only those who meet the following requirements can vote for its leadership:

  • Jewish and religiously observant residents of Crown Heights
  • Married, previously married or at least 30 years old
  • Male

Now Eliyahu Federman, a Crown Heights resident and recent law school graduate [of CUNY School of Law], is challenging that last requirement, saying he believes it to be unconstitutional.

The rest of today's NYT story is here.  

For ConLawProfs still looking for a challenging exam question, this might be a good place to start.


1912 NYC Women's suffrage

[image: Suffrage Parade in New York City, 1912, via]

April 15, 2011 in Equal Protection, Establishment Clause, First Amendment, Free Exercise Clause, Fundamental Rights, Gender, News, Religion, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Footnote of the Day: Taxes and Numbers

Tax day, usually April 15 but this year with a filing extension until Monday, remains a suitable day to appreciate numeracy and try to maintain a sense of humor.  The law review article, The Law of Prime Numbers, 68 NYU Law Review 185 (1993), authored by 19 authors, attempts to do both.


Slight on text, the article's footnotes are appreciations of individual prime numbers.  Footnote “l” of the article highlights the prime number “37” with a discussion of a famous tax footnote, a more loosely linked interpretative question, and an even more tangentially related, but exceedingly important, constitutional criminal procedure case:

 37 was the footnote number in Crane v. Commissioner, 331 U.S. 1, 14 (1947), in which the Supreme Court set forth a proposition that would bedevil tax practitioners and scholars for decades. In what has come to be acknowledged as the most famous footnote in tax history, see Boris I. Bittker, Tax Shelters, Nonrecourse Debt and the Crane Case, 33 Tax L.Rev. 277 (1978), the Court suggested that the inclusion in income occurring on the relief of a liability for which the taxpayer had no personal liability should be limited to the fair market value of the property securing the debt, rather than the full amount of the debt. It was not until the Court revisited the issue in 1983, in Commissioner v. Tufts, 461 U.S. 300, 307 (1983), that footnote 37 was repudiated, laying the issue to rest (we think). In the intervening period, however, much effort was consumed in the pursuit of the true meaning of this cryptic footnote. See, e.g., Christian C. Day, Commissioner v. Tufts: The Fall of Footnote 37; The Confirmation of the Functional Relationship, 45 U.Pitt.L.Rev. 803, 804 n. 3 (1984) (“If footnote 37 did not launch a thousand ships, it certainly killed more than its share of trees in its day and still continues to do so.”).

37 dollars was the price per 100 pounds of chicken established in the contract at the heart of Frigaliment Importing Co. v. B.N.S. Int'l Sales Corp., 190 F.Supp. 116, 117 (S.D.N.Y.1960). A dispute arose between the buyer (plaintiff) and seller (defendant) as to whether the chickens that were delivered met the specifications of the contract. Judge Friendly faced the difficult hermeneutical issue of just what, exactly, is a “chicken”:

Plaintiff says “chicken” means a young chicken, suitable for broiling and frying. Defendant says “chicken” means any bird of that genus that meets contract specifications on weight and quality, including what it calls “stewing chicken” and plaintiff pejoratively terms “fowl.” Dictionaries give both meanings, as well as some others not relevant here. To support it, plaintiff sends a number of volleys over the net; defendant essays to return them and adds a few serves of its own. Assuming that both parties were acting in good faith, the case nicely illustrates Holmes' remark “that the making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs—not on the parties' having meant the same thing but on their having said the same thing.” I have concluded that plaintiff has not sustained its burden of persuasion that the contract used “chicken” in the narrower sense.

Id. (citation omitted). Upon learning of the court's decision, the plaintiff undoubtedly clucked “FOWL.”

37 was the age of the detective who arrested Clarence Earl Gideon when he testified at Gideon's retrial. Gideon had secured a retrial by successfully arguing to the U.S. Supreme Court that, as an indigent, he had a constitutional right to representation by counsel. See Anthony Lewis, Gideon's Trumpet 233 (1966). In Gideon v. Wainwright, 372 U.S. 335, 345 (1963), the Warren Court established the right of indigent defendants to the appointment of counsel in both federal and state prosecutions. The Court generously referred to members of the legal profession in this instance as “necessities, not luxuries.” Id. at 344.

  Taxpayer receipt

In need of further tax numbers?  Check out the new "Taxpayer Recepit" program from the White House, an idea that was articulated by Ethan Porter and David Kendall.


[image: Arabic numerals via]

April 15, 2011 in Criminal Procedure, Games, Scholarship, Taxing Clause | Permalink | Comments (0) | TrackBack (0)

Thursday, April 14, 2011

The President's Authority to use Military Force in Libya

The Office of Legal Counsel last week released a memorandum advising that the President has constitutional authority to authorize military operations in Libya.  (This obviously isn't a surprise, but it may be worth a look.)

The memo, dated April 1 but released last week, first analyzes the President's constitutional authority to direct the use of military force in Libya and then analyzes whether congressional approval was constitutionally required.

As to the first question, the OLC concluded that the President's authority to direct military force in Libya derived from his Article II authorities as commander in chief and chief executive, his constitutional authority over foreign affairs, and the President's historical exercise of authority without prior congressional approval.  The OLC wrote that Congress recognized this authority in the War Powers Resolution (even if the WPR doesn't provide affirmative statutory authority for military operations), which provides for short-term use of force by the President without prior congressional approval.

The OLC wrote that the President could exercise this authority in order to protect sufficiently important national interests.  Here, those interests were preserving regional stability and supporting the credibility of the United Nations Security Council (through its Resolution 1973, which imposed a no-fly zone and authorized the use of military force to protect civilians).

As to the second question--congressional power to declare war, the "one possible constitutionally-based limit on this presidential authority to employ military force in defense of important national interests," op. at 8--the OLC concluded that the military commitment here did not amount to a "war" for the purpose of the Declaration of War Clause.  It noted that President Obama's commitment of force was limited to airstrikes and associated support missions, with no ground troops, and that the "limited mission" did not "aim at the conquest or occupation of territory."  (Quoting Proposed Deployment of United States Armed Forces into Bosnia, 19 Op. OLC at 333.) 


April 14, 2011 in Congressional Authority, Executive Authority, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Seventh Circuit Rules No Standing to Challenge Presidential National Day of Prayer Proclamation

In a succinct Opinion authored by Chief Judge Easterbrook in Freedom From Religion Foundation v. Obama, the Seventh Circuit has held that the organization does not have standing to challenge the Presidential Proclamation of a National Day of Prayer.  The Opinion's appendix notably includes Obama's Proclamation as Appendix B and a Proclamation by George Washington as Appendix A. 


As we discussed, last year District Judge Barbara Crabb declared the proclamation of a national day of prayer unconstitutional: "The same law that prohibits the government from declaring a National Day of Prayer also prohibits it from declaring a National Day of Blasphemy."

Reversing the lower court, the Seventh Circuit did not find sufficient injury to confer standing:

Plaintiffs contend that they are injured because they feel excluded, or made unwelcome, when the President asks them to engage in a religious observance that is contrary to their own principles. It is difficult to see how any reader of the 2010 proclamation would feel excluded or unwelcome. Here again is the proclamation’s only sentence that explicitly requests citizens to pray: “I call upon the citizens of our Nation to pray, or otherwise give thanks, in accordance with their own faiths and consciences, for our many freedoms and blessings, and I invite all people of faith to join me in asking for God’s continued guidance, grace, and protection as we meet the challenges before us.” But let us suppose that plaintiffs nonetheless feel slighted. Still, hurt feelings differ from legal injury. The “value interests of concerned bystanders” (United States v. SCRAP, 412 U.S. 669, 687 (1973)) do not support standing to sue.

Further, the Seventh Circuit noted:

                    If this means that no one has standing, that does not change the outcome.

Judge Williams wrote separately to concur but express some concerns with the "majority's reasoning and the uncertainty of the Supreme Court's precedent."   Specifically, Judge Williams rejects the majority's reliance on Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004), a challenge to the "under God" phrase in the Pledge of Allegiance, by a noncustodial father.  As Williams notes, it was Newdow's custodial status and not the "feelings of exclusion" that foreclosed Newdow's standing.  Additionally, Williams contends:

 The Court simply has not been clear as to what distinguishes the psychological injury produced by conduct with which one disagrees from an injury that suffices to give rise to an injury-in-fact in Establishment Clause cases. As the Ninth Circuit recently noted, the Court has
decided cases in many contexts where the plaintiffs claimed that they were hurt by exposure to unwelcome religious messages from the government, including cases involving a creche in a county courthouse, a creche in a public park, the Ten Commandments displayed on the grounds of a state capitol, the Ten Commandments displayed at a courthouse, a cross displayed in a national park, prayer in a football game, school prayer, a moment of silence at school, Bible reading at a public school, and a religious invocation at graduation. [citation omitted].  In all of those cases, the Court treated standing as sufficient, even though it appears that nothing was affected but the religious or irreligious sentiments of the plaintiffs.  “To ignore the import of those cases for the standing analysis, one would have to believe the Supreme Court repeatedly overlooked a major standing problem and decided a plethora of highly controversial cases unnecessarily and inappropriately.

Judge Williams continues by noting that "as recently as last week, the Court stated in Arizona Christian School Tuition Organization v. Winn that even though it had decided a number of Establishment Clause cases on the merits that appeared to be in tension with its decision to find no standing in the case before it, those cases were not dispositive because they did not address the threshold standing question."

In Hein v. Freedom from Religion Foundation decided in 2007 by the Supreme Court, the organization was similarly denied standing in its suit against faith-based funding.


[image: Old Woman in Prayer by Nicholas Maes circa 1656  via]

April 14, 2011 in Establishment Clause, First Amendment, Opinion Analysis, Religion, Standing | Permalink | Comments (0) | TrackBack (0)

CFP: Race and Criminal Justice in the West


Gonzaga University School of Law
Spokane, WA
Friday-Saturday, September 23-24, 2011
Sponsored by:
Gonzaga University School of Law
The Task Force on Race and the Criminal Justice System

deadline for submission of proposals June 6, 2011


Gonzaga law From the conference organizers:  "This conference seeks to examine the topic of race and the criminal justice system in the Western states. Racial minorities continue to be overrepresented in our criminal justice system; yet too often concerns about the high arrest and incarceration rates are dismissed as simply the result of a high rate of criminality. This conference will explore the role of bias, both conscious and unconscious, to ask whether race still matters in our criminal justice system. While the emphasis will be on the West, we welcome papers and presentations focusing on other areas of the country, particularly ones that engage in comparative analyses."

Proposals must contain the following information:
Name, Address, Phone, and e-mail
Title of Presentation and whether the paper will be submitted for publication
A statement of up to 300 words explaining topic

The organizers welcome suggestions for full or partial panels.  The deadline for submission of proposals is June 6, 2011. Please submit proposals via e-mail to Professor Jason Gillmer of Gonzaga Law.  Those submitting can expect to receive a response by July 1, 2011.  Final drafts of papers will be due October 24, 2011. Publication decisions for papers will be made by the Gonzaga Law Review.


April 14, 2011 in Conferences, Criminal Procedure, Race | Permalink | Comments (0) | TrackBack (0)

Footnote of the Day: Baseball Poem

In acknowledgement of both baseball season and poem in your pocket day, Justice Harry Blackmun provides a pair of suitable footnotes.

Casey at Bat statute Footnote 4:

Millions have known and enjoyed baseball. One writer knowledgeable in the field of sports almost assumed that everyone did until, one day, he discovered otherwise:

I knew a cove who'd never heard of Washington and Lee,

Of Caesar and Napoleon from the ancient jamboree,

But, bli'me, there are queerer things than anything like that,

For here's a cove who never heard of ‘Casey at the Bat’!

‘Ten million never heard of Keats, or Shelley, Burns or Poe;

But they know ‘the air was shattered by the force of Casey's blow’;

They never heard of Shakespeare, nor of Dickens, like as not,

But they know the somber drama from old Mudville's haunted lot.

‘He never heard of Casey! Am I dreaming? Is it true?

Is fame but windblown ashes when the summer day is through?

Does greatness fade so quickly and is grandeur doomed to die

That bloomed in early morning, ere the dusk rides down the sky

‘He Never Heard of Casey’ Grantland Rice, The Sportlight, New York Herald Tribune, June 1, 1926, p. 23.

Footnote 5:

These are the saddest of possible words,

‘Tinker to Evers to Chance.’

Trio of bear cubs, and fleeter than birds,

‘Tinker to Evers to Chance.’

Ruthlessly pricking our gonfalon bubble,

Making a Giant hit into a double-

Words that are weighty with nothing but trouble:

‘Tinker to Evers to Chance.“

Franklin Pierce Adams, Baseball's Sad Lexicon.

The case is Flood v. Kuhn, 407 U.S. 258, 296 (1972), the baseball antitrust case, in which Justice Blackmun quotes the poems in his footnotes to capture America’s fondness for baseball.  Later in the opinion which included more about the history of baseball, Blackmun wrote: ""In view of all this,"  it was appropriate to say that "professional baseball is a business and engaged in interstate commerce," although it is an "exception and an anomaly" and thus exempt from anti-trust laws, even as "football, boxing, basketball, and, presumably, hockey and golf are not so exempt."   

There are footnotes for "hockey" and "golf" but they contain case citations, not poems.


with J. Zak Ritchie

[image: statute of Casey at the Bat, via]


April 14, 2011 in Cases and Case Materials, Commerce Clause, Games, History, Sports, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 13, 2011

Senate Judiciary Hearing on Fair Elections Now Act

The Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights yesterday held a hearing titled, "The Fair Elections Now Act: A Comprehensive Response to Citizens United." 

The Subcommittee considered S. 750, the Fair Elections Now Act, which creates a public financing system for congressional elections.  The system would encourage campaigns based on small donations (under $100) from in-state contributors: candidates would need a certain number of such donations to qualify for public financing; and the system would match small donations up to five times the donation.  The Act would also cap the rates for television ads for participating candidates at 80 percent of the lowest charge during periods before the election and provide advertising vouchers for participating candidates.

According to Monica Youn of the Brennan Center, who testified yesterday, participants in public financing systems can compete in a post-Citizens United world, provided that the system offers candidates sufficient funds:

But the experiences of jurisdictions with public financing demonstrates that, as long as such systems offer candidates sufficient funds to run viable campaigns, publicly financed candidates can run competitive and successful races even in the face of high levels of hostile independent spending.

Under the Fair Elections Now Act, participating Senate candidates would get $1.25 million, plus another $250,000 per congressional district in their state, split 40 percent for the primary and 60 percent for the general.  But they would also qualify for matching funds at five times the contribution for each contribution of $100 or less from in-state contributors, up to three times the initial allocation for the primary, and again for the general.  And they would benefit from the television ad cap plus vouchers (worth $100,000 for each congressional district in their state).

The Brookings Institution estimates that the average cost of a Senate seat in 2008 was $7,500,052.

In addition to Monica Youn, former Senator and co-chair of Americans for Campaign Reform Alan Simpson, and president of the Republican National Lawyers Association Cleta Mitchell also testified.

Supporters of the Fair Elections Now Act have a web-site that explains the bill.


April 13, 2011 in Association, Campaign Finance, Elections and Voting, First Amendment, News, Speech | Permalink | Comments (0) | TrackBack (0)

CFP: Constitutional Law Colloquium at Loyola Chicago

Conference Announcement and Call for Papers

The Loyola Second Annual Constitutional Law Colloquium

October 21 & 22, 2011

The submission deadline for abstracts is May 31, 2011.


Loyola University Chicago School of Law is organizing the Second Annual Constitutional Law Colloquium at the Philip H. Corboy Law Center, 25 East Pearson Street, Chicago, IL 60611. The event will begin on Friday morning, October 21 and end midday on Saturday, October 22, 2011.   

Loyola law This is the second annual Loyola conference bringing together constitutional law scholars at all stages of their professional development to discuss current projects, doctrinal developments in constitutional law, and future goals. We hope to schedule presentations for all who submit. In this way, we will provide a forum for the vetting of ideas, invaluable opportunities for informed critiques, and networking opportunities. Presentations will be grouped by subject matter.

The organizers invite abstract submissions of 150 to 200 words from Constitutional Law professors interested in contributing to the current debates concerning constitutional theory and Supreme Court rulings. The goal of the conference is to allow professors to develop new ideas with the help of supportive colleagues on a wide range of constitutional law topics.   Again, the submission deadline for abstracts is May 31, 2011. 

Topics, abstracts, papers, questions, and comments should be submitted to: Program Administrator Carrie Bird,  

Note from the organizers: "Participants are expected to pay their own travel expenses. Loyola will provide facilities, support, and continental breakfasts on Friday and Saturday, lunch on Friday and Saturday, and a dinner on Friday night. There are numerous reasonably priced hotels within walking distance of the Loyola School of Law and Chicago’s Magnificent Mile."


April 13, 2011 in Conferences | Permalink | Comments (0) | TrackBack (0)

Footnote of the Day: Bill of Rights Provisions Incorporated Against the States

In need of a handy list (with citations) of the provisions of the Bill of Rights incorporated against the states through the Fourteenth Amendment's Due Process Clause? 

The Court's opinion in McDonald v. City of Chicago, decided June 2010, is an obvious place to look and its footnotes do not disappoint.  

As support for the proposition "The Court eventually incorporated almost all of the provisions of the Bill of Rights," the opinion includes footnote 12

Amendments 1-8

With respect to the First Amendment, see Everson v. Board of Ed. of Ewing, 330 U. S. 1 (1947) (Establishment Clause); Cantwell v. Connecticut, 310 U. S. 296 (1940) (Free Exercise Clause); De Jonge v. Oregon, 299 U. S. 353 (1937) (freedom of assembly); Gitlow v. New York, 268 U. S. 652 (1925) (free speech); Near v. Minnesota ex rel. Olson, 283 U. S. 697 (1931) (freedom of the press).

With respect to the Fourth Amendment, see Aguilar v. Texas, 378 U. S. 108 (1964) (warrant requirement); Mapp v. Ohio, 367 U. S. 643 (1961) (exclusionary rule); Wolf v. Colorado, 338 U. S. 25 (1949) (freedom from unreasonable searches and seizures).

With respect to the Fifth Amendment, see Benton v. Maryland, 395U. S. 784 (1969) (Double Jeopardy Clause); Malloy v. Hogan, 378 U. S. 1 (1964) (privilege against self-incrimination); Chicago, B. & Q. R. Co.v.Chicago, 166 U. S. 226 (1897) (Just Compensation Clause).

With respect to the Sixth Amendment, see Duncan v. Louisiana, 391U.S. 145 (1968) (trial by jury in criminal cases); Washington v. Texas, 388 U. S. 14 (1967) (compulsory process); Klopfer v. North Carolina, 386 U. S. 213 (1967) (speedy trial); Pointer v. Texas, 380 U. S. 400 (1965) (right to confront adverse witness); Gideon v. Wainwright, 372U.S. 335 (1963) (assistance of counsel); In re Oliver, 333 U. S. 257 (1948) (right to a public trial).

With respect to the Eighth Amendment, see Robinson v. California, 370 U. S. 660 (1962) (cruel and unusual punishment); Schilb v. Kuebel, 404 U. S. 357 (1971) (prohibition against excessive bail).

 In the next footnote, footnote 13, the Court discusses the provisions that have not been incorporated:

                the Sixth Amendment right to a unanimous jury verdict;
                the Third Amendment’s protection against quartering of soldiers;
                the Fifth Amendment’s grand jury indictment requirement;
                the Seventh Amendment right to a jury trial in civil cases;
                the Eighth Amendment’s prohibition on excessive fines

 At issue in McDonald, of course, was the Second Amendment's right to "keep and bear arms."  

In a 5-4 decision, the Court in McDonald held that this right belongs with the category of incorporated rights in footnote 12 and not with the unincorporated rights discussed in footnote 13.


April 13, 2011 in Cases and Case Materials, Due Process (Substantive), Establishment Clause, Federalism, Fifth Amendment, First Amendment, Fourteenth Amendment, Fourth Amendment, Free Exercise Clause, Fundamental Rights, Games, History, Interpretation, Second Amendment, Sixth Amendment | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 12, 2011

Eleventh Circuit En Banc Upholds Orlando Ordinance Prohibition of Feeding in Public Parks

The en banc Eleventh Circuit has agreed with the panel that an Orlando, Florida ordinance prohibiting the provision of food to large groups is constitutional.  The panel opinion, which we discussed here, reversed the district judge, over a vigorous dissent by Judge Rosemary Barkett.

The en banc Eleventh Circuit's relatively brief (15 page) opinion  - - - joined by Judge Barkett and without dissent - - - sidestepped the issue of "expressive conduct":

The resolution of this appeal does not require us to determine whether the feeding of homeless persons by Orlando Food Not Bombs in public parks is expressive conduct entitled to protection under the First Amendment. We will assume, without deciding, that this conduct is expressive and entitled to some protection under the First Amendment. See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984). But even when we assume that the feeding of homeless persons by Orlando Food Not Bombs is expressive conduct, we cannot conclude that the ordinance that regulates that conduct violates the Free Speech Clause of the First Amendment.

The en banc court ruled that it would "uphold the ordinance of the City of Orlando both as a
reasonable time, place, or manner restriction of speech and as a reasonable regulation of expressive conduct."  It easily concluded that the test of United States v. O’Brien, 391 U.S. 367 (1968) was satisfied:

The ordinance is a valid regulation of expressive conduct that satisfies all four requirements of O’Brien.  First, Orlando Food Not Bombs does not contest that it is within the power of the City to enact ordinances that regulate park usage. Second, the City has a substantial interest in managing park property and spreading the burden of large group feedings throughout a greater area and those interests are plainly served by the ordinance. Third, the interest of the City in managing parks and spreading large group feedings to a larger number of parks is unrelated to the suppression of speech. Fourth, the incidental restriction of alleged freedoms under the First Amendment is not greater than necessary to further the interest of the City.


[image via]

April 12, 2011 in First Amendment, Food and Drink, Opinion Analysis, Recent Cases, Speech | Permalink | Comments (1) | TrackBack (0)

Footnote of the Day: Separation of Powers and Military Commissions in Hamdan

Writing for the Court in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), Justice Stevens included footnote 23:

Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). The Government does not argue otherwise.

In his article, Congress, the Commander-In-Chief, and the Separation of Powers After Hamdan,  16 Transnational Law & Contemporary Problems 933 (2007), draft available on ssrn, Professor Stephen Vladeck argues - - - in a footnote - - - that "To say that “[t]he Government does not argue otherwise” is entirely misleading, for the government’s entire theory of the case was that the UCMJ procedures were not exhaustive."  Id. at 959 n. 141.  

Vladeck later expands on the relevance of the footnote in Hamdan and its relationship to the famous concurrence of Justice Robert Jackson (pictured right) in Youngstown:

Robert Jackson In the crucial footnote 23, the only part of the majority opinion where Justice Stevens even attempted to recognize the existence of a significant constitutional question in Hamdan, the sole citation is to Justice Jackson’s Youngstown concurrence, and to page 637—where Jackson outlines all of the second category and the beginnings of the third. It is an odd choice, though, given that even in category three cases, where the President’s power was to be at its “lowest ebb,” there remained a residual question about “disabling” Congress, the very question raised by the Commander-in-Chief override.

Indeed, through the lens of Justice Jackson’s Youngstown concurrence, the logic of Hamdan grows only more obfuscated. Was the majority  disavowing any and all claims to inherent executive power in the field of trying enemy combatants by military commission? If so, was it overruling a series of cases upholding such tribunals even where congressional authorization was questionable?  Was it reading the UCMJ as manifesting clear (and valid) congressional intent to oust independent executive regulation? Suffice it to say, if Justice Stevens meant to decide Hamdan on the strength of Justice Jackson’s Youngstown concurrence, he skipped a few steps, for he did not even attempt to undertake the question (to which Jackson had devoted over a dozen pages) of whether the President’s inherent constitutional authority might trump congressional restrictions in such a case.

Id. at 960.


[image: Justice Robert Jackson, circa 1945, via]

April 12, 2011 in Cases and Case Materials, Congressional Authority, Executive Authority, Games, Habeas Corpus, Opinion Analysis, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, April 11, 2011

Ninth Circuit Upholds Injunction Against Arizona SB1070

In its opinion issued today in United States v. Arizona, a panel of the Ninth Circuit affirmed the district court's preliminary injunction against the enforcement of four sections of the Arizona immigration statute passed a year ago and commonly known as SB 1070.  The Ninth Circuit held that the US had a likelihood of success on its federal preemption argument against these four sections based on the federal government's claim of preemption under the Supremacy Clause, Article VI.

Judge Richard Paez wrote the panel's opinion of 40 plus pages; John Noonan wrote a concurring opinion and Carlos Bea wrote a partial concurrence and partial dissent.  Sb1070

In the panel opinion, Judge Paez set out the applicable standards before turning to each section.  The discussions in each section, however, also analyzed different standards and facets of the complexity that is preemption doctrine.

As to section 2(B), Judge Paez rejected Arizona's argument that state law enforcement officers are only required to verify the immigration status of an arrested person before release if reasonable suspicion exists that the person lacks proper documentation:

On its face, the text does not support Arizona’s reading of Section 2(B). The second sentence is unambiguous: “Any person who is arrested shall have the person’s immigration status
determined before the person is released.” Ariz. Rev. Stat. Ann. § 11-1051(B) (2010) (emphasis added). The all encompassing “any person,” the mandatory “shall,” and the definite “determined,” make this provision incompatible with the first sentence’s qualified “reasonable attempt . . . when practicable,” and qualified “reasonable suspicion.”

This - as well as other language in the statute - conflicted with INA, the federal law: "8 U.S.C. § 1357(g) demonstrates that Congress intended for state officers to systematically aid in immigration enforcement only under the close supervision of the Attorney General."

As to section 3, Judge Paez found that Arizona's state criminal provision that "a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation" of federal law, is not authorized by federal statutes and "plainly stands in opposition to the Supreme Court's direction" regarding field preemption. 

Section 5(c), the "work" provision which makes criminal an "unauthorized alien" knowingly applying for work soliciting work in a public place, or performing work, Judge Paez stressed the Congressional rejection of work penalties in the INA, as well as Ninth Circuit precedent on this issue, and concluded that federal law "likely preempts SB1070 Section 5(C) since the state law conflicts" with Congressional intent.

Finally, in addressing Section 6 which provides that a "peace officer, without a warrant, may arrest a person if the officer has probable cause to believe"  that the "person to be arrested has committed any public offense that makes the person removable from the United States," Judge Paez found that states do not have inherent authority to enforce the civil provisions of federal immigration law.  Moreover, this section "interferes with the federal government's prerogative to make removability determinations and set priorities." 

Concurring, Judge Noonan wrote separately "to emphasize the intent of the statute and its compatibility with federal foreign policy." 

Judge Bea concurred as to Sections 3 and 5(C), but dissenting as to the other two sections, stressing that the enforcement mechanisms and the necessity of considering Congressional - - - and not Executive - - - intent.


[image via]

April 11, 2011 in Congressional Authority, Criminal Procedure, Current Affairs, Opinion Analysis, Preemption, Supremacy Clause | Permalink | Comments (0) | TrackBack (0)

Footnote of the Day: Co-Ed Sports and VMI

Should there be co-ed football?  Must there be?

Justice Scalia, dissenting in United States v. Virginia (VMI), 515 U.S. 515 (1996), objected to the Court's "sweeping" rejection of single-sex programs and argued that it seems there can not be any possible exceptions to the Court's broad rule.   In footnote 8, he explained:

In this regard, I note that the Court--which I concede is under no obligation to do so--provides no example of a program that would pass muster under its reasoning today: not even, for example, a football or wrestling program. On the Court's theory, any woman ready, willing, and physically able to participate in such a program would, as a constitutional matter, be entitled to do so.

  Co-ed football


This would be a great class exercise for law schools at public universities with a large proportion of football devotees.  For baseball afficiandos, there will be a footnote later this week.


Suggested by Professor Jessica Silbey

[Image from the Cleveland Plain Dealer, May 1, 2009 via]

April 11, 2011 in Cases and Case Materials, Equal Protection, Fourteenth Amendment, Games, Gender, Sports, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Saturday, April 9, 2011

Footnote of the Day: Tradition

In Arizona Christian School Tuition Organization v. Winn, decided this week, a deeply divided Court  reversed the Ninth Circuit's finding that an Arizona statute providing a tax credit to be used for education at religiously-funded schools violated the Establishment Clause.  The Court held that the taxpayer plaintiffs lacked standing.

In Justice Kagan's dissenting opinion, joined by three other Justices, she uses the word tradition" in footnote 10:

On this traditional view of the harm to taxpayers arising from state financing of religion, the Plaintiffs here can satisfy not only Article III’s injury requirement, but also its causation and redressability requirements. The majority’s contrary position, ante, at 15–16, stems from its miscasting of the injury involved; once that harm is stated correctly, all the rest follows. To wit: The Plaintiffs allege they suffer injury when the State funnels public resources to religious organizations through the tax credit. Arizona, they claim, has caused this injury by enacting legislation that establishes the credit. And an injunction limiting the credit’s operation would redress the harm by preventing the allegedly unlawful diversion of tax revenues. The Plaintiffs need not, as the majority insists, show that this remedy would “affect . . . their tax payments,” ante, at 16, any more than the taxpayer in Flast had to establish that her tax burden would decrease absent the Government’s funding of religious schools. As we have previously recognized, when taxpayers object to the spending of tax money in violation of the Establishment Clause (whether through tax credits or appropriations), “aninjunction against the spending would . . . redress [their] injury, regard-less of whether lawmakers would dispose of the savings in a way that would benefit the taxpayer-plaintiffs personally.” DaimlerChrysler Corp. v. Cuno, 547 U. S. 332, 348–349 (2006).

In the text accompanying this footnote, Kagan cites a portion of DaimlerChrysler as "describing how the Flast Court’s understanding of the Establishment Clause’s history led the Court to view the alleged “injury” as the expenditure of ' "tax money" in aid of religion.' "   Dissenting Opinion at 19.

James_Madison Moreover, Kagan's discusses some specific history and tradition relevant to the Establishment Clause: the famous statement by James Madison (pictured left) in Memorial and Remonstrance that governments should not “force a citizen to contribute three pence only of his property forthe support of any one establishment.’”  This is quoted by the Court, but Kagan disputes the majority's reliance:

And finally, James Madison provides no comfort to today’s majority. He referred to “three pence” exactly because it was, even in 1785, a meaningless sum of money; then, as today, the core injury of a religious establishment hadnaught to do with any given individual’s out-of-pocket loss.

Dissenting Opinion at 18.  Whenever the majority in Winn considers “tradition”  it does so in the text; the Court’s opinion does not possess any footnotes.  Justice Kennedy, writing for the Court, most explicitly invokes "tradition" by stating:

The concept and operation of the separation of powers in our National Government have their principal foundation in the first three Articles of the Constitution. Under Article III, the Federal Judiciary is vested with the“Power” to resolve not questions and issues but “Cases” or “Controversies.” This language restricts the federal judicial power “to the traditional role of the Anglo-American courts.” Summers v. Earth Island Institute, 555 U. S. 488, ___ (2009) (slip op., at 4). In the English legal tradition, the need to redress an injury resulting from a specificdispute taught the efficacy of judicial resolution and gavelegitimacy to judicial decrees. The importance of resolving specific cases was visible, for example, in the incremental approach of the common law and in equity’s considerationof exceptional circumstances. The Framers paid heed to these lessons.

Opinion at 4.

The role of “tradition” in recent Supreme Court cases is the subject of a new article, Constitutional Traditionalism in the Roberts Court by Louis J. Virelli III, Professor at Stetson University College of Law, draft available on ssrn, forthcoming in Pittsburgh Law Review.  Virelli considers the role of “tradition” in standing cases, as well as in other constitutional areas such as the dormant commerce clause, and the Fourth, Sixth, and Fourteenth Amendments. While Virelli discusses  “tradition” as a theoretical concept, his goal is not to enter the ideological fray, but instead his main project is an empirical one.   What does the Court actually say about tradition?  Using a dataset of the first five years of decisions from The Roberts Court, starting October 1, 2005, he searched for all cases that that contain the term “constitution” and at least one of the following  “tradition-related” terms:  “tradition,”  “culture,” “custom,” “heritage,”  or “history” with a yield of 222 entries.    He shows that some form of traditionalism was relied upon in approximately 44% of the cases decided by the Roberts Court.   

Virelli also provides an empirical portrait of the individual Justices in terms of their use of “tradition-related” language and provides some wonderfully illustrative bar graphs.  The Justice most likely to resort to tradition?  Not surprisingly, it is Justice Scalia.  The Justice least likely?  Perhaps more surprisingly, Justice Thomas.   Justice Kennedy, author of the majority opinion in the just-decided Winn, is third, after Scalia and Roberts.  Justices Sotomayor and Kagan are not included in years of the analysis, but the analysis includes Justices Stevens and Souter, with Souter not being as much of a traditionalist in the Roberts Courts years as he seemed to be earlier.

Perhaps in a future project, Professor Virelli will illuminate the intersection between traditionalism and footnotes?


[image: James Madison, 1818, Portrait in the White House Collection, via]

April 9, 2011 in Cases and Case Materials, Courts and Judging, Establishment Clause, First Amendment, Games, History, Interpretation, Opinion Analysis, Recent Cases, Religion, Scholarship, Standing, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)