FedSoc Blog

Next Wednesday, October 5, Justices Scalia and Breyer will be testifying before the Senate Judiciary Committee on the topic "Considering the Role of Judges Under the Constitution of the United States." You can watch a webcast of the proceedings (at 2:30 PM) on the Senate website.

Ed Whelan over at NRO Bench Memos blogged about the hearing a few days ago, expressing some puzzlement about why the Justices, who have debated in the past over judicial philosophy (including here at a joint event between the Federalist Society and the American Constitution Society), would choose to do so before a committee that will likely interrupt their conversation with speeches. He speculates that the senators may have agreed to some special rules for the occasion in order to convince the Justices to attend.

The Washington Post reports that a senior Obama Administration official has confirmed Anwar al-Aulaqi, an American-born Muslim cleric who has been linked to al-Qaeda, dead today after his convoy was struck by a U.S. drone and jet in northern Yemen.

Al-Aulaqi was a national of both the United States and Yemen and has been implicated in inspiring several terrorist attacks in the U.S., including the Fort Hood shooting in November 2009, the infamous attempted "Underwear Bombing" aboard a plane bound for Detroit in December 2009, and the car bomb that failed to detonate in Times Square in May 2010.

Do such airstrikes in foreign countries on American citizens and others who are suspected of terrorism comply with U.S. law and the international laws of war? For more on that question, click here for a podcast from the Federalist Society's International & National Security Law Practice Group on "Predator Drones and Targeted Killings," and click here for an Engage article on the subject from Michael Lewis and Vincent Vitkowsky.

After suing Arizona and Alabama in federal court to keep those states from enforcing their immigration laws, the federal government is now contemplating suits against officials in Utah, Georgia, Indiana, and South Carolina for similar laws cracking down on illegal immigration, according to The Washington Post today.

The Justice Department only last week lost its effort to persuade a federal district court to strike down provisions of an Alabama law that, among other things, makes it a crime not to carry proper alien documentation and allows police to detain persons when the police have "reasonable suspicion" that they are in the country illegally. But it has won in the 9th Circuit, which overturned similar legislation in Arizona.

Responding to the Obama Administration's litigation against these state laws, Prof. Jonathan Turley of George Washington Law said, "I don't recall any time in history that the Justice Department has so aggressively challenged state laws."

The ACLU and other civil rights groups have already been successful so far in blocking immigration laws in Utah, Georgia, and Indiana, but they have also been lobbying the White House to enter the fray and sue the states for allegedly violating the due process and equal protection rights of immigrants. The fate of this litigation may very well depend on whether the Supreme Court decides to accept certiorari in the Arizona case.

The Federalist Society has introduced a new way for young members of the Society to get involved with the organization. The Founders Club gives law school graduates who are at most 10 years out of school the opportunity to donate to the Society at reduced levels but still receive similar benefits: recognition in the Society's annual report, an invitation to a Founders Club reception at our National Lawyers Convention, and the chance to chat with legal luminaries at our programs.

Click here to check it out!

Note: Being an actual founder of our country is a bonus but is NOT required to join The Founders Club.

The Federalist Society just published a new white paper examining state court challenges to legislatively enacted tort reform.  Written by Andrew C. Cook and Emily Kelchen, the article begins by noting that "Over the past three decades, proponents of civil liability reform have made significant gains. Propelled by significant electoral gains in the 2010 cycle, it appears that the trend will continue this year, with 21 states so far enacting civil liability legislation."  The authors explain that their paper intends:

to provide a summary of recent state supreme court cases in which opponents of civil liability reform have challenged reform laws, mostly on constitutional grounds. Part I begins with a discussion of relatively recent cases in which civil liability reform laws were challenged and struck down. Part II discusses a recent West Virginia case upholding the state’s cap on noneconomic damages. Part III provides a summary of pending cases challenging civil liability reform laws in state courts across the country. Part IV provides an overview of recently enacted civil liability reform laws from various states.

The Federalist Society heartily congratulates its own Peter Redpath for winning the Young Conservative Leadership Buckley Award.  Vice President & Director of the Student Division and motivator extraordinaire, Peter is set to receive the award in a ceremony this Thursday at 6 pm at the Capitol Hill Club in D.C.  Starting last year, the Young Conservative Coalition annually bestows the honor, named after former wunderkind William F. Buckley, on five conservative stars under the age of 40.

Peter is to be commended for his public service--and for inspiring a generation of law students to argue with their constitutional law professors.  Well done!

The USA Today reports that the DOJ has declined to ask the 11th Circuit to review a ruling that struck down the heart of President Obama's health care plan.  In August, a divided three-judge panel on the Circuit held that the health care plan's individual mandate violated the Constitution.  The decision sided with the 26 states that had sued to stop the law from taking effect.  The Obama administration could have asked for an en banc review of the decision, but that might have postponed the issue's reaching the Supreme Court. 

The issue of timing is key both legally and politically: "The administration's decision makes it more likely that the U.S. Supreme Court would hear a case on the health care overhaul in the court's term starting next month, and render its verdict on the law in the midst of the 2012 presidential election campaign." 

In The Washington Post, Robert Barnes reviews Justice Kagan's first year on the Supreme Court: "liberals who worried that she would not shore up the court’s left flank have so far found their concerns unfounded. The man she replaced, Justice John Paul Stevens, said he can think of only a couple of cases where she voted differently than he would have. And the senior liberal justice, Ruth Bader Ginsburg, seems especially taken with her."

Examining the style of her opinions, Barnes finds it to be relatively youthful and informal--e.g., she called the video game Mortal Kombat "iconic."   He also highlights her occasional forays into sarcasm, such as in her dissent in the Citizens United campaign finance case.  Responding to the majority's claim that it found a smoking gun, Kagan retorted, "the only smoke here is the majority’s, and it is the kind that goes with mirrors.”

The article describes Kagan and Chief Justice Roberts as "something of a pair: ideological opposites who possess similar Ivy League educations and intellects; potential coalition builders on a splintered court and writers who seem to strive to explain their jurisprudence to those beyond the walls of the Supreme Court." 

In a recorded interview last month at the Aspen Institute, Kagan said that her approach to writing opinions is similar to what she tried to do when teaching at a law school: "The goal is to 'figure out how to communicate complicated ideas to people who know a lot less than you do about a certain subject,' Kagan said, adding she looks for 'vivid ways of explaining that will stick with people.'"

She also continued her habit of lauding Roberts, who, she said, “may have been the best oral advocate in the history of the Supreme Court.”

The Wall Street Journal yesterday reported on the FBI's use of a little-known cell-phone tracking device that is being challenged in court on constitutional grounds.  The device, generically called a "stingray," is a small box that can triangulate the location of a cell phone even if the phone is not making any calls.  Essentially, a stingray works by pretending to be a cell-phone tower.  The devices are used by a variety of law enforcement agencies.  The FBI has been so secretive about its use of the device that they have been deleting the data gathered in its use--largely, they maintain, to prevent criminals from knowing the device's capabilities.

The FBI used a stingray to identify the location of alleged hacker Daniel David Rigmaiden, who was subsequently arrested and charged with fraud.  In a court hearing scheduled for next Thursday, Rigmaiden, who maintains his innocence, is demanding that the FBI release the data it used to find him so that he can use it in his defense.  He is arguing that the use of the device without a warrant violate's the Fourth Amendment, which prohibits unreasonable searches and seizures.

According to the Journal:

[Rigmaiden's] argument has caught the judge's attention. In a February hearing, according to a transcript, Judge Campbell asked the prosecutor, "Were there warrants obtained in connection with the use of this device?"

The prosecutor, Frederick A. Battista, said the government obtained a "court order that satisfied [the] language" in the federal law on warrants. The judge then asked how an order or warrant could have been obtained without telling the judge what technology was being used. Mr. Battista said: "It was a standard practice, your honor."

Judge Campbell responded that it "can be litigated whether those orders were appropriate."

Previously, FBI and DOJ officials have publicly stated that warrants are not necessary to use a stingray in the field.  They have compared the device to "pen registers," which collect cell phone information, such as numbers dialed, but not the content of the call.  In order for a pen register to be used for surveillance, law enforcement must still obtain a court order, but the standard is less than that for a warrant.

In any event, Ringmaiden asserts that the warrant could not have been valid since, among other things, it permitted the destruction of the tracking data.

Sherry Sabol, Chief of the Science & Technology Office for the FBI's Office of General Counsel, has defended the FBI's policy of expunging such data by claiming the data was never intended to be used as evidence in court.  Instead, the FBI has intended the data to be used to identify the "general location of their subject"--information that is then used to obtain other evidence sufficient to justify a physical search of the premises.

At NRO, Ed Whelan quotes a speech Senator Orrin Hatch delivered yesterday in honor of Justice Scalia's 25 years on the Supreme Court: 

September 17 was an anniversary with double significance for our country. On September 17, 1787, delegates to the Constitutional Convention in Philadelphia held their final meeting and signed the Constitution they had crafted. And on September 17, 1986, this body voted unanimously to confirm Justice Antonin Scalia’s appointment to the Supreme Court of the United States. Today, 25 years later, he is the senior member of the Court.

These two events are profoundly related because Justice Scalia is literally helping us rediscover the real Constitution. His approach to doing the work of judges is helping us to rediscover the Constitution that America’s Founders gave us--the Constitution that is powerful and solid; the Constitution that belongs to the people, protects our rights, limits government, and makes liberty possible.

The full text of the Senator's remarks, which were delivered on the floor of the Senate, as well as some congratulatory letters from some of the Justice's former clerks can be found here.

Manhattan's Upper West Side was recently diversified with some highly atypical sidewalk art.  As DNAinfo reported, artist Hani Shihada has chalked large portraits of conservative/libertarian icons Friedrich Hayek, Margaret Thatcher, and Thomas Sowell on the pavement. 

Shihada was previously known in the neighborhood for his sidewalk portraits of President Obama, Senator Ted Kennedy, and Justice Sotomayor--none of which were commissioned.  Shihada's new right-of-center works, by contrast, were commissioned by Michael Schrage, a research fellow at MIT's business school who focuses on innovation risk-management.   He also blogs for the Harvard Business Review.

As Schrage explained, "I thought it would be great fun and a wonderful way to reinforce the Upper West Side 'brand' as a place where real intellectuals with real ideas can be debated and discussed. . . . It's the idea of a friendly rivalry, not standing in opposition. If I wanted to [upset] people I would have asked for [Newt] Gingrich or [Mitt] Romney."

Shihada, a Palestinian who came to the U.S. from Spain 25 years ago said, "I like to do different things. . . . The idea is to make people think and question and wonder why. I'm an artist--I'm not supposed to be prejudiced toward anybody. I'm understanding. That’s the whole idea."

According to the news story:

Shihada said the Hayek portrait has garnered the most positive response, with some viewers stopping to thank him for the picture. Schrage said he'd seen some stop and look up Hayek on their iPhones, which is exactly the reaction he was hoping for, he said.

A few blocks north, the portrait of Columbia University-educated economist and columnist Thomas Sowell drew a frown from local resident Paul Chevigny, a law professor at NYU.

"He's a right-wing ideologue, and I presume the artist is too," Chevigny said.

At the Volokh Conspiracy, Ilya Somin points to an article reporting that Connecticut Supreme Court Justice Richard Palmer apologized to Susette Kelo for finding against her in the famous eminent domain case.  Writing in the Hartford Courant, Jeff Benedict described the scene last year:

If a state Supreme Court judge approaches a journalist at a private dinner and says something newsworthy about an important decision, is the journalist free to publish the statement?

I faced that situation at a dinner honoring the Connecticut Supreme Court at the New Haven Lawn Club on May 11, 2010. That night I had delivered the keynote address on the U.S. Supreme Court’s infamous 5–4 decision in Kelo v. New London. Susette Kelo was in the audience and I used the occasion to tell her personal story, as documented in my book “Little Pink House.”

Afterward, Susette and I were talking in a small circle of people when we were approached by Justice Richard N. Palmer. Tall and imposing, he is one of the four justices who voted with the 4–3 majority against Susette and her neighbors. Facing me, he said: “Had I known all of what you just told us, I would have voted differently.”

I was speechless. So was Susette. One more vote in her favor by the Connecticut Supreme Court would have changed history. The case probably would not have advanced to the U.S. Supreme Court, and Susette and her neighbors might still be in their homes.

Then Justice Palmer turned to Susette, took her hand and offered a heartfelt apology. Tears trickled down her red cheeks. It was the first time in the 12-year saga that anyone had uttered the words “I’m sorry.”

It was all she could do to whisper the words: “Thank you.”

Then Justice Palmer let go of her hand and walked off.

But later, Justice Palmer partially retracted the apology.  According to Benedict:

Justice Palmer sent me a “personal and confidential” letter dated Nov. 8, 2010. In it he didn’t dispute my account. Nor did he ask me not to publish. Rather, he provided some important context.

“Those comments,” he wrote, “were predicated on certain facts that we did not know (and could not have known) at the time of our decision and of which I was not fully aware until your talk — namely, that the city’s development plan had never materialized and, as a result, years later, the land at issue remains barren and wholly undeveloped.” He later added that he could not know of those facts “because they were not yet in existence....”

Q: Looking back at the Kelo decision (by the Connecticut Supreme Court), how do you see it now? In other words, has it led to good law?

A: I think that our court ultimately made the right decision insofar as it followed governing U.S. Supreme Court precedent. Whether the Kelo case has led to good statutory law is not a question for me or my court; so long as that law is constitutional, its merits are beyond the scope of our authority. Of course, judges are also citizens and, therefore, we may hold a view on the merits, but that view should not interfere with or affect our legal judgment concerning the law’s constitutionality.

Somin comments on the justice's careful choice of words:

It is not entirely clear whether Justice Palmer now believes that the court was justified in upholding the taking under the Connecticut state Public Use Clause. His statement that he and the other majority justices “made the right decision insofar as [they] followed governing U.S. Supreme Court precedent” could be interpreted to mean that they were wrong on those aspects of the case that were not governed by US Supreme Court precedent, including the question of whether the New London takings were justifiable under the Connecticut Constitution.

An op-ed in the New York Law Journal claims that the American Bar Association's Model Rule for Admission by Motion is distorted by the organization's monopoly interests.  The author, attorney and former judge Kenneth L. Gartner, notes that up until the 1920s, a lawyer could enter the profession via an apprenticeship.  The ABA, however, started pushing for laws that would require a degree from an ABA-accredited law school before one could take a state's bar exam.  That requirement is now the law in 45 states, thus giving the ABA virtual monopoly power over entry into the profession.

What has been less noticed, Gartner maintains, is that the ABA has used its Model Rule for Admission by Motion to help cement that monopoly.  He notes that under the Model Rules, "even if a lawyer takes a state's bar examination, passes it, is admitted to practice before the bar of that state, practices successfully for years, and maintains good standing in the profession, the attorney can never be eligible for admission in another state if (1) the attorney received his or her degree from a non-ABA approved law school, or (2) the attorney's practice consists of being a professor at a non-ABA approved law school." This is the case even though the ABA itself has recognized the increase in the cross-border practice of law.

Gartner is at least glad to see that the ABA commission reviewing the Model Rule has proposed reducing the years-of-practice requirement from five to three.

An event of possible interest to those in the D.C. area:

Google's business practices are currently under review by the Federal Trade Commission, several state Attorneys General, and the European Commission. Competitors and critics assert that the Google search engine, and its search engine's results, should be reviewed and potentially regulated by government authorities. Google and its supporters assert that it is merely trying to provide the best answers for consumers. In the fast moving technology space, what role--if any--should antitrust authorities play in policing search engine methodology and results? How should regulators respond to allegations of "unfairness"? Most recently, the government's interest in Google has expanded to include questions about its proposed acquisition of Motorola--what is the proper governmental role here?  

Panelists:

• The Honorable Thomas O. Barnett, Partner, Covington & Burling LLP
• Professor James Grimmelmann, New York Law School  
• The Honorable Charles F. "Rick" Rule, Partner, Cadwalader, Wickersham & Taft LLP
• Mr. Berin Szoka, President, TechFreedom
• The Honorable Ronald A. Cass, President, Cass & Associates, PC, Moderator 

Date: Monday, September 19, 2011
Time: noon - 2:00 p.m.
Location: National Press Club Conference Rooms, 529 14th St. NW, Washington, DC
There is no charge to attend this event. Lunch will be served. 

Click here to register.