Constitutional Law Prof Blog

Daily Humor: Is there a First Amendment Challenge to the Marijuana Mandate?

Professor Ruthann Robson, City University of New York (CUNY) School of Law

In his satirical column for the New Yorker, humorist Andy Borowitz (pictured below) writes:

NEW YORK (The Borowitz Report)—President Obama is about to issue an executive order that would force all Americans to purchase a monthly supply of marijuana, the Fox News Channel reported today.

 

Borowitz's "reports" of fake news have been mistaken for true, perhaps because they often have a basis, albeit quite slanted, in reality.  For example, this report springboards from President Obama's remarks quoted in a lengthy profile by David Remnick in The New Yorker.  (This is not satirical and is definitely worth a read).

It also springboards from the discourse surrounding the ACA ("Obamacare") which the Court upheld as constitutional in NFIB v. Sebelius.

ConLawProfs looking for our own "springboards" for an interesting in-class discussion could definitely use the "marijuana mandate," especially when discussing Gonzales v.Raich, 545 U. S. 1 (2005). 

And perhaps the springboarding could incorporate the First Amendment (and RFRA) challenges to the so-called "contraceptive mandate" now before the Court in Hobby Lobby, Inc. and Conestoga Wood Specialties, Corporation.   It might be an interesting to contemplate the relevance of Employment Division, Dept. of Human Resources of Oregon v. Smith in this light.

This could make for a fun discussion.

 

Sunday Dress: Wearing a Mask for Halloween

Many states have anti-masking statutes, criminalizing the wearing of a mask or identity concealing face covering. 

In some states, the statutes are known as anti-Klan statutes, although by their terms they do not limit their coverage to Klan regalia.  The Georgia Supreme Court upheld the state's anti-masking statute, O.C.G.A. 16-11-38, against a First Amendment challenge in State v. Miller (1990).  Shade Miller, who was arrested for appearing in KKK regalia alone near the courthouse in Gwinnet County, purportedly to protest the anti-mask statute, argued that the statute was overbroad.   In addressing Miller’s argument, the court interpreted the statute narrowly, but not so narrowly as to exclude the KKK.  Instead, the court required the mask-wearer to have intent to conceal his identity and further that the statute would  “apply only to mask-wearing conduct when the mask-wearer knows or reasonably should know that the conduct provokes a reasonable apprehension of intimidation, threats or violence.”

Considering New York's anti-masking statute - - -  one that has its roots not in Klan activities but was first passed in 1845 and directed at a widespread resistance to farming rents assessed by large estate owners, known as the anti-rent riots - - - the Second Circuit in 2004 similarly upheld the statute against a First Amendment challenge in Church of American Knights of the Ku Klux Klan v. Kerik.  The KKK group had sought an injunction against the statute to allow a demonstration while wearing masks. Rejecting the First Amendment claim, the court agreed that the KKK regalia - - - the robe, hood, and mask - - - met the threshold requirement for expressive speech, but nevertheless separated the mask in its analysis.  In the court’s view, the mask was “redundant” and did “not convey a message independently of the robe and hood.” Moreover, the court opined that mask-wearing was not integral to the expression, but optional even amongst KKK members.

Not limited to the KKK, the anti-masking statute was used in prosecutions of Occupy Wall Street protestors.

But surely, these statutes do not apply on Halloween?

The Georgia statute has a specific exemption for "A person wearing a traditional holiday costume on the occasion of the holiday," while the New York statute does not apply "when it occurs in connection with a masquerade party or like entertainment if, when such entertainment is held in a city which has promulgated regulations in connection with such affairs, permission is first obtained from the police or other appropriate authorities."

In Louisiana, the statutory exemption for "activities of children on Halloween," and other events such as Mardi Gras, has its own exception for any "person convicted of or who pleads guilty to a sex offense."

Wearing a mask on Halloween may be traditional, but it may not be constitutionally protected.

[image via]

when it occurs in connection with a masquerade party or like entertainment if, when such entertainment is held in a city which has promulgated regulations in connection with such affairs, permission is first obtained from the police or other appropriate authorities; - See more at: http://codes.lp.findlaw.com/nycode/PEN/THREE/N/240/240.35#sthash.lWP6lnsF.dpuf

when it occurs in connection with a masquerade party or like entertainment if, when such entertainment is held in a city which has promulgated regulations in connection with such affairs, permission is first obtained from the police or other appropriate authorities; - See more at: http://codes.lp.findlaw.com/nycode/PEN/THREE/N/240/240.35#sthash.lWP6lnsF.dpuf

Daily Write: Citing a Secret Court Ruling

As a companion to today's "daily read" on  a "secret ruling on secret motion in secret hearing,"  we offer the unofficial "Blue Book" citation, courtesy of a ConLawProf Blog reader who hopes to remain anonymous:

 

Daily Read: William Ford on the Law and Science of Violent Video Games

The national conversation on violence has shifted since last week to include not only discussions of the Second Amendment, the role of conlaw scholars, appropriate quotations, and arming school teachers, but also "violent video games."

Any mention of the regulation of violent video games occurs in the shadow of the Court's 2011 decision in Brown v. Entertainment Merchants Association in which the Court held unconstitutional California's statute prohibiting the sale of violent video games to minors under the age of 18 without parental permission. Scalia, for the Court, assessed the statute under the First Amendment, reasoning that the statute was not narrowly tailored:

As a means of protecting children from portrayals of violence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto. And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime.

In dissent, Breyer cited more than 100 studies on the links between violent video games and aggression, contending that legislatures were in a better position to assess such social science data than judges.

Professor William Ford (pictured) interrogates the scientific and social scientific underpinnings of video game regulation.  In his article The Law and Science of Video Game Violence: What Was Lost in Translation?, forthcoming in Cardozo Arts & Entertainment Law Journal, available in draft on ssrn, Ford ultimately agrees with the Court's conclusion in Entertainment Merchants Association, given that "the First Amendment interests at stake in these cases outweighed the speculative possibility that a legislature is better able to assess scientific evidence than the courts."   He criticizes Breyer's view that legislatures are better positioned to assess the data than judges, by noting that legislators are also ill-equipped as social scientists.  Ford states that "there is no study, let alone a literature, assessing the relative skill of legislators and judges in reviewing or assessing scientific evidence."  Ford then implies that legislators might be less able to assess the evidence, because "the dominant goal usually associated with legislative behavior is reelection, which is not necessarily conducive to the careful assessment of scientific evidence." Taken to its logical conclusion, that sentiment would have the courts very busy indeed, and would obliterate deferential review in constitutional law.

Ford's arguments about the social science literature, however, are exceedingly well-taken.  In sum, it is inconclusive at best.  Considering not only Entertainment Merchants Association, but other legislation and cases, he summarizes:

The relevant literature is large, especially when one recognizes that these cases cannot just be about whether video game “violence” causes “aggression.” At a minimum, these cases were also about, or should have been about, a nuanced view of what counts as violence and aggression, how to operationalize violence and aggression, what types of violence may be particularly harmful, who might be most susceptible to harmful effects from violent media, and whether government restrictions would do anything to alleviate the harm.

Ford's article is also worth a read for its excellent discussion of "causation" in the debates about the role of video games.  This is an issue that may surface as more facts become known about recent events - - - and even more studies are produced that may be used by legislators and courts.

RR
[image: Mortal Kombat via]

 

Daily Read: Are You a Textualist? Take the Quiz

Here's one of the 12 questions in a  "quiz" on textualism.  It appears in the ABA Journal, by Bryan Garner as an "outtake" omitted from the controversial book co-authored with Justice Antonin Scalia, Reading Law.

A state constitution declares that superior court judges are to be elected by both branches of the legislature. The legislature enacts a statute allowing the governor to appoint a superior court judge to fill a vacancy. Is the statute constitutional?

Garner instructs:

As you try answering each question, identify not just the outcome but also the canons of construction that must be considered. Our answers are normative rather than descriptive. They are the answers of a textualist. Purposivists, consequentialists and hence some courts would reach different (and variable) results.

Apparently other types of constitutional interpretation, including evolutive, critical, or "living constitution" theories are beyond the ken.  But in role as textualists, this question is one of the easier ones:

Answer: No, the statute is unconstitutional. The constitution specifies how superior court judges are to take office—not including gubernatorial appointment. The governing rule is the negative-implication canon. See § 10 [of Reading Law].

Most of the questions stress statutory construction, but as in the book, there is a conflation of constitutional and statutory interpretation.  Garner promises an additional set of questions and answers will be forthcoming in the ABA Journal.

RR
[image circa 1901 via]

Caricatures of Supreme Court: Just for Fun

 
A bit of humor as the semester winds down for many conlawprofs and the grading begins. 

The Zoopreme Court tumblr site features caricatures of Justices and a few opinions.  They are usually  plays on the names, though a bit of politics can be evident. 

Here's the recently retired, but still in the news, including as the author of a forthcoming memoir, Justice Stevens, as

"John Paul Steervens": 

RR

 

Footnote of the Day: Are Footnotes Necessary?

Our April series of footnotes ends today with the well rehearsed debate about their necessity.  Justice Breyer eschews footnotes in his opinions.  In the rather famous 1985 essay from then-Judge Abner Mikva of the U.S. Court of Appeals for the D.C. Circuit, he decried the use of footnotes: “I consider footnotes in judicial opinions an abomination."

I hate to read footnotes. I always lose my place in the text and miss the train of thought the author is trying to get me on. But I am afraid that the footnote I fail to read is the key to the whole thing, and so I sneak a peek at some, but not all (I always read footnotes numbered 4). I feel very guilty about the ones that I skip over. In my early days on Law Review I was told that the footnotes are the real measure of worth in legal writing. Intellectually, I do not believe it, but then I think of all the footnotes that law students and lawyers and judges have written since the beginnings of law. (Not quite the beginnings: there is not a single footnote to the original version of the Ten Commandments.) Can all those exemplars be wrong? 

I think they are. [4]

His footnote four?  It is not that most famous footnote four, but a challenge to the reader:  "Just what did you expect to find?"  Abner Mikva, Goodbye to Footnotes, 56 U. Colo. L. Rev. 647 (1985).

There are no footnotes 1, 2, or 3 in Mikva's article, but there is the biographical footnote.  For a discussion of the conventions of this footnote practice in legal scholarship, Charles Sullivan's, The Under-Theorized Asterisk Footnote, 93 Georgetown Law Journal 1093 (2005), available on ssrn, is worth a look.

And also worth a look is the defense of footnotes by then-Judge Edward Becker, In Praise of Footnotes,  74 Wash. U. L.Q. 1 (1996):

I, however, refuse to give up footnoting. In fact, I do not consider it a vice. As a federal judge for a quarter century, I believe in footnotes and am convinced that the judicious use of footnotes allows judges to communicate most effectively with their diverse audiences. . . . the footnotephobes seem to have missed the essential point that judges are professional writers and that well-conceived and well-crafted footnotes are valuable tools of their trade. Because the time seems ripe for a dissenting statement, I write to praise footnotes, rather than to bury them.

RR
[image via]

Footnote of the Day: Marriage in the Colonies

Apropos of today's "royal wedding" in Great Britain, the Court in Loving v. Virginia (1967) offered a footnote explaining marital practices in a former colony.  In footnote 4, the Court first quoted the Virginia miscegenation statute at issue in Loving:

Intermarriage prohibited; meaning of term "white persons." -- It shall hereafter be unlawful for any white person in this State to marry any save a white person, or a person with no other admixture of blood than white and American Indian. For the purpose of this chapter, the term "white person" shall apply only to such person as has no trace whatever of any blood other than Caucasian; but persons who have one-sixteenth or less of the blood of the American Indian and have no other non-Caucasic blood shall be deemed to be white persons. All laws heretofore passed and now in effect regarding the intermarriage of white and colored persons shall apply to marriages prohibited by this chapter.

                Va.Code Ann. § 20-54 (1960 Repl. Vol.).

The Court then continued:

The exception for persons with less than one-sixteenth "of the blood of the American Indian" is apparently accounted for, in the words of a tract issued by the Registrar of the State Bureau of Vital Statistics, by "the desire of all to recognize as an integral and honored part of the white race the descendants of John Rolfe and Pocathontas. . . ." [citations omitted].

 Loving v. Virginia, 388 U.S. 1, 5 n.4 (1967).

RR

[image: statute of Pocahontas at Jamestown, Virginia, via]

Footnote of the Day: Statements of Judicial Nominees or Candidates

In footnote 4 of her dissenting opinion in the 5-4 decision in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), declaring unconstitutional an ethical prohibition on judicial candidates announcing their opinions, Justice Ginsburg wrote:

The author of the Court’s opinion [in the present case of Republican Party of Minnesota v. White] declined on precisely these grounds to tell the Senate whether he would overrule a particular case:

‘‘Let us assume that I have people arguing before me to do it or not to do it. I think it is quite a thing to be arguing to somebody who you know has made a representation in the course of his confirmation hearings, and that is, by way of condition to his being confirmed, that he will do this or do that. I think I would be in a very bad position to adjudicate the case without being accused of having a less than impartial view of the matter.’’

13 R. Mersky & J. Jacobstein, The Supreme Court of the United States: Hearings and Reports on Successful and Unsuccessful Nominations of Supreme Court Justices by the Senate Judiciary Committee, 1916–1986, p. 131 (1989) (hearings before the Senate Judiciary Committee on the nomination of then-Judge Scalia).

RR
[image via]

Footnote of the Day: Colonial Criminal Sodomy Statutes

Footnote 5 provides:

Criminal sodomy laws in effect in 1791:

Connecticut: 1 Public Statute Laws of the State of Connecticut, 1808, Title LXVI, ch. 1, § 2 (rev. 1672).
Delaware: 1 Laws of the State of Delaware, 1797, ch. 22, § 5 (passed 1719).
Georgia had no criminal sodomy statute until 1816, but sodomy was a crime at common law, and the General Assembly adopted the common law of England as the law of Georgia in 1784. The First Laws of the State of Georgia, pt. 1, p. 290 (1981).
  Maryland had no criminal sodomy statute in 1791. Maryland's Declaration of Rights, passed in 1776, however, stated that "the inhabitants of Maryland are entitled to the common law of England," and sodomy was a crime at common law. 4 W. Swindler, Sources and Documents of United States Constitutions 372 (1975).
Massachusetts: Acts and Laws passed by the General Court of Massachusetts, ch. 14, Act of Mar. 3, 1785.
New Hampshire passed its first sodomy statute in 1718. Acts and Laws of New Hampshire 1680-1726, p. 141 (1978).
Sodomy was a crime at common law in New Jersey at the time of the ratification of the Bill of Rights. The State enacted its first criminal sodomy law five years later. Acts of the Twentieth General Assembly, Mar. 18, 1796, ch. DC, § 7.
New York: Laws of New York, ch. 21 (passed 1787).
At the time of ratification of the Bill of Rights, North Carolina had adopted the English statute of Henry VIII outlawing sodomy. See Collection of the Statutes of the Parliament of England in Force in the State of North Carolina, ch. 17, p. 314 (Martin ed. 1792).
Pennsylvania: Laws of the Fourteenth General Assembly of the Commonwealth of Pennsylvania, ch. CLIV, § 2 (passed 1790).
Rhode Island passed its first sodomy law in 1662. The Earliest Acts and Laws of the Colony of Rhode Island and Providence Plantations 1647-1719, p. 142 (1977).
South Carolina: Public Laws of the State of South Carolina, p. 49 (1790).
At the time of the ratification of the Bill of Rights, Virginia had no specific statute outlawing sodomy, but had adopted the English common law. 9 Hening's Laws of Virginia, ch. 5, § 6, p. 127 (1821) (passed 1776).

Footnote 6 of the opinion then lists the "Criminal sodomy statutes in effect in 1868." 

These footnotes are from the opinion of Justice White (pictured above via) for the Court in Bowers v. Hardwick, 478 U.S. 186 (1986), in which the Court reversed the Eleventh Circuit, and held Georgia's sodomy statute constitutional, based in large part on its reasoning that these criminal statutes formed a background against which a "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." 

Bowers v. Hardwick was reversed by Lawrence v. Texas,539 U.S. 558 (2003). 

RR

Footnote of the Day: Who Funded Those Studies?

In footnote 17, the Court wrote

The Court is aware of a body of literature running parallel to anecdotal reports, examining the predictability of punitive awards by conducting numerous “mock juries,” where different “jurors” are confronted with the same hypothetical case. See, e.g., C. Sunstein, R. Hastie, J. Payne, D. Schkade, W. Viscusi, Punitive Damages: How Juries Decide (2002); Schkade, Sunstein, & Kahneman, Deliberating About Dollars: The Severity Shift, 100 Colum. L. Rev. 1139 (2000); Hastie, Schkade, & Payne, Juror Judgments in Civil Cases: Effects of Plaintiff's Requests and Plaintiff's Identity on Punitive Damage Awards, 23 Law & Hum. Behav. 445 (1999); Sunstein, Kahneman, & Schkade, Assessing Punitive Damages (with Notes on Cognition and Valuation in Law), 107 Yale L.J. 2071 (1998). Because this research was funded in part by Exxon, we decline to rely on it.

Exxon Shipping Co. v. Baker, 554 U.S. 471, 501n.17 (2008). 

The case resulted from the spilling of oil from the supertanker Exxon Valdez and the issue was one of the parameters of punitive damages under "maritime common law,"  but the resonance of footnote 17 is potentially far-reaching.  Indeed, today's oral argument in IMS v. Sorrell involving studies funded by "big pharma" may raise similar concerns.

The Stanford Law and Policy Review put on a symposium on the issue of academic integrity in 2010, including  Lee Epstein, Academic Integrity and Legal Scholarship in the Wake of Exxon Shipping Footnote 17, 21 Stan. L. & Pol’y Rev. 33 (2010), and Thomas O. McGarity, A Movement, a Lawsuit, and the Integrity of Sponsored Law and Economics Research, 21 Stan. L. & Pol’y Rev. 51 (2010) (both available on westlaw and lexis).

RR
with J. Zak Ritchie
[image: Oil Cleaning After Exxon Valdez Spill, Prince William Sound, via]

Footnote of the Day: A Little Music Criticism Perhaps

New music always sounds loud to old ears. Beethoven seemed to make more noise than Mozart; Liszt was noisier than Beethoven; Schoenberg and Stravinsky, noisier than any of their predecessors.

N. Slonimsky, Lexicon of Musical Invective: Critical Assaults on Composers Since Beethoven's Time 18 (1953).
One music critic wrote of Prokofiev:

Those who do not believe that genius is evident in superabundance of noise, looked in vain for a new musical message in Mr. Prokofiev's work. Nor in the Classical Symphony, which the composer conducted, was there any cessation from the orgy of discordant sounds.

Id. at 5 (internal quotations omitted).

 Justice Marshall, dissenting in Ward v. Rock Against Racism, 491 U.S. 781, 808 n.7 (1989).

 

RR

[image: Anonymous, 18th C House Concert, via]

Footnote of the Day: The Most Common Footnote in the Eleventh Circuit

Although its use has waned and its footnote number has vacillated, arguably the most common footnote in decisions of the Eleventh Circuit Court of Appeals is this one:

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.

As Chief Judge Godbold wrote in Bonner,

This is the first case to be heard by the United States Court of Appeals for the Eleventh Circuit, established October 1, 1981 pursuant to the Fifth Circuit Court of Appeals Reorganization Act of 1980, P.L. 96-452, 94 Stat. 1995, and this opinion is the first to be published by the Eleventh Circuit. Under P.L. 96-452 the United States Court of Appeals for the Fifth Circuit was divided into two circuits, the Eleventh and the “new Fifth.” This court, by informal agreement of its judges prior to October 1, 1981, confirmed by formal vote on October 2, 1981, has taken this case en banc to consider what case law will serve as the established precedent of the Eleventh Circuit at the time it comes into existence. We hold that the decisions of the United States Court of Appeals for the Fifth Circuit (the “former Fifth” or the “old Fifth”), as that court existed on September 30, 1981, handed down by that court prior to the close of business on that date, shall be binding as precedent in the Eleventh Circuit, for this court, the district courts, and the bankruptcy courts in the circuit.

A quick database search shows over 25,000 citations of Bonner v. City of Prichard. 

RR

 

Footnote of the Day: The Satisfaction of Michigan v. Long?

The footnote from the Tennessee Supreme Court seems rather innocuous:

The decision in Middlebrooks was required by Art. I, § 16 of the Tennessee Constitution. We reviewed federal constitutional law in our analysis to determine whether the duplication also violated the Eighth Amendment to the United States Constitution, but Middlebrooks was decided on separate and independent state constitutional grounds. See Middlebrooks, 840 S.W.2d at 346; Zant v. Stephens, 462 U.S. at 877.

State v. Howell, 868 S.W.2d 238, 259 n.7 (1993).  But the footnote is a dramatic one, as Neil Colman McNabe demonstrated in his article, A Rescue From The Jaws Of The Crocodile: The Post-Certiorari Plain Statement Footnote, 59 Albany Law Review 1737 (1996).  

The Middlebrooks case in the footnote was Middlebrooks v. State, in which the Tennessee Supreme Court vacated Donald Ray Middlebook's death sentence.  The state sought certiorari to the United States Supreme Court, which was granted, oral argument was heard, and then certiorari was dismissed as improvidently granted.  The reason for the dismissal of certiorari was that footnote 7 in Howell, rendered 9 days after the oral argument in Middlebrooks.  The footnote  was deemed to satisfy the rule of Michigan v. Long.  

The Court in Michigan v. Long, 463 U.S. 1032 (1983), enunciated its rule of judicial review for state decisions involving federal constitutional matters: the state court must include a "plain statement" that the decision rests on adequate and independent state grounds.  Otherwise, the Court will assume that the state court decided the way it did because it felt compelled to do so by federal constitutional law.  Interestingly, Michigan v. Long involved the state executive branch attempting to overrule its own state high court by seeking review from the United States Supreme Court.  Many other cases followed a similar pattern, as was the situation in State v. Middlebrooks.

However, as the Sixth Circuit opinion affirming a denial of habeas to Middlebrooks decided in September 2010 makes clear, the dismissal of certiorari did not end the matter.  After the Tennessee Supreme Court vacated the death sentence, "In 1995, a jury again sentenced Middlebrooks to death after finding that the murder was especially heinous, atrocious, or cruel and after weighing the aggravating and mitigating circumstances."   Middlebrooks then raised a number of constitutional claims in state postconviction proceedings, including ineffective assistance of counsel, and in the subsequent habeas petition in federal district court which was denied, and which the Sixth Circuit affirmed.

Meanwhile, Tennessee is one of several states that have turned over their supplies of sodium thiopental, a sedative widely used in lethal injections, to the federal drug enforcement officials because of controversies regarding the drug.

RR
(H/T J. Zak Ritchie)

Footnote of the Day: Topless Dancing, Alcohol, and the First Amendment

"If topless dancing is entitled to First Amendment protection, it would seem to me that the places where it should most appropriately be conducted are places where alcoholic beverages are served. A holding that a state liquor board may prohibit its licensees from allowing such dancing on their premises may therefore be the practical equivalent of a holding that the activity is not protected by the First Amendment."

Footnote 10, in Justice Stevens' dissenting opinion in New York State Liquor Authority v. Bellanca, 452 U.S. 714 (1981). 

RR

Footnote of the Day: Bush v. Gore in the Sixth Circuit

The United States Supreme Court has refused to intercede in Hunter v. Hamilton County Board of Elections, the Sixth Circuit opinion we discussed here.  In the word's of the Court's Order:

The application to recall and stay the mandate of the United States Court of Appeals for the Sixth Circuit, case Nos. 10-4481, 11-3059, and 11-3060, presented to Justice Kagan and by her referred to the Court is denied.

This not only permits a recount in the Hamilton County election for Juvenile Court Judge, but also leaves intact footnote 24 from the Sixth Circuit's opinion:

It is also discomforting that Ohio’s rule that all provisional ballots cast in the wrong precinct must be excluded may fall—at least in this instance—unevenly on voters depending on where the Board directs them to vote. In single-precinct polling places there is less room for error than at the multiple precinct locations that have caused so much difficulty in this case. As a result, fewer provisional ballots are likely to be counted in multiple-precinct polling places than in those that serve only a single precinct. This disparate impact might not be of constitutional significance everywhere in Ohio, but here Plaintiffs assert that “the polling places where most of the error-infected provisional ballots were cast are in African- American areas of Hamilton Country.” Plaintiffs 2d Br. at 3. It appears, then, that the exclusionary rule in this case may accrue to the detriment of a protected class.

Political Science Professor Charles Stewart III of MIT has a terrific analysis over at Election Law Blog, Reflections on Footnote 24 of the 6th Circuit Hunter Opinion, with a link to his 9 page paper that contains further discussion.  Indeed, anyone looking for information on the Hunter litigation would do well to consult the Election Law Blog page on the case. 

For his part, Stewart argues,

On the whole, the county-level evidence in Ohio for footnote 24 is weak. There is no evidence that counties with more multi-precinct voting locations issue more provisional ballots than those with few consolidated voting locations. The answer to whether counties with more multi-precinct voting locations reject more provisional ballots depends on how you set up the problem — what the denominator is for the rejection rate (all in-person voters or just the number of people issued a provisional ballot) and whether one weights by the number of voters in a county.

 Professor Stewart also "crunches the numbers" and provides some visual representations (see left).  His ultimate conclusion, however, is accessible even to those who might not fully appreciate all the data:

Hard evidence of voter fraud is difficult to come by. Hard evidence of poll worker discretion is easy to come by. If election administration were as data-driven as other areas of public administration, one would think that we would be tackling the problems related to polling place integrity we know to exist.

 RR

Footnote of the Day: Express Advocacy's Magic Words

Footnote 52 in Buckley v. Valeo, 424 US 1, 44 (1976) is oft-cited for its "magic words" articulating advocacy 
in the context of campaign financing:

This construction would restrict the application of § 608(e)(1) to communications containing express words of advocacy of election or defeat, such as "vote for," "elect," "support," "cast your ballot for," "Smith for Congress," "vote against," "defeat," "reject."

As footnote 8 of Justice Stevens' dissenting opinion in Citizens United, explains, "If there was ever any significant uncertainty about what counts as the functionalequivalent of express advocacy, there has been little doubt about what counts as express advocacy since the “magic words” test of Buckley v. Valeo, 424 U. S. 1, 44, n. 52 (1976) (per curiam)."  558 U.S. at ____ (2010), Dissenting Opinion at 11.

 

 

For an interesting discussion of the addition of the "magic words" of footnote 52 in Buckley v. Valeo, Professor Richard Hasen's The Untold Drafting History of Buckley v. Valeo, available on ssn, is illuminating.

RR
[image via]

Footnote of the Day: Imagine

Footnote 2.

The lyrics are as follows:       

“Imagine there's no heaven
It's easy if you try
No hell below us
Above us only sky
Imagine all the people
Living for today ...
“Imagine there's no countries
It isn't hard to do
Nothing to kill or die for 
And no religion too
Imagine all the people
Living life in peace ...
“You may say I'm a dreamer
But I'm not the only one
I hope someday you'll join us
And the world will be as one

“Imagine no possessions
I wonder if you can
No need for greed or hunger
A brotherhood of man
Imagine all the people
Sharing all the world ...
“You may say I'm a dreamer
But I'm not the only one
I hope someday you'll join us
And the world will live as one.”

J. Lennon, Imagine, on Imagine (Apple Records 1971).

 

Because we previously posted this footnote as a "quiz," it seems only fair to do so again.
Name the case and the Justice. 
Hint: It is the opinion for the Court in a United States Supreme Court case.  
Rules: no use of notes, databases, internet or other sources.
Answer: In comments.

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.  

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."

 

RR

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).

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.

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