FedSoc Blog

New SCOTUScast: Moncrieffe v. Holder


by SCOTUScaster
Posted October 31, 2012, 4:38 PM

On October 10, the Supreme Court heard oral argument in Moncrieffe v. Holder. The question in the case is whether a conviction under state law that encompasses--but is not limited to--distributing marijuana without remuneration constitutes an “aggravated felony” for purposes of deportation under the Immigration and Nationality Act.

To discuss the case, we have Scott Broyles, an assistant professor at Charlotte School of Law.

Click here to view this article on the source site »

Categories: SCOTUScasts

Video of Uncommon Knowledge Interview with Justice Scalia


by Publius
Posted October 31, 2012, 3:19 PM

On October 19, FedSoc's Silicon Valley Lawyers Chapter and the Hoover Institution's Uncommon Knowledge hosted Supreme Court Justice Antonin Scalia as he sat down for a wide ranging interview in which he discussed subjects including the "living constitution," Roe v. Wade, Congress' relationship to the court, and his new book Reading Law: The Interpretation of Legal Texts.


  • Hon. Antonin Scalia, United States Supreme Court
  • Host: Mr. Peter Robinson, Research Fellow and Host of Uncommon Knowledge, Hoover Institution

High Court Examines the Reliability of Drug-Sniffing Dogs


by Publius
Posted October 31, 2012, 12:43 PM

The Washington Post has the story:

Aldo the German shepherd and Franky the chocolate Lab are drug-detecting dogs who have been retired to opposite ends of the ultimate retiree state.

But their work is still being evaluated, and on Wednesday it will be before the Supreme Court. The justices must decide whether man’s best friend is an honest broker as blind to prejudice as Lady Justice, or as prone as the rest of us to a bad day at the office or the ma­nipu­la­tion of our partners.

The Supreme Court in the past has tended to agree with the first view. Justice John Paul Stevens, now retired, wrote for the court in a 2005 case that a drug-sniffing dog reveals “no information other than the location of a substance that no individual has any right to possess.”

But the two cases on the docket present an aggressive challenge to the notion that a dog’s “alert” to the presence of drugs is enough to legally justify a search of someone’s home or vehicle.

Florida v. Jardines asks whether it was constitutional for Miami-Dade County police, acting on a tip, to bring Franky to Joelis Jardines’s front door. Franky alerted to the smell of marijuana, the police used that to obtain a warrant, and Jardines was arrested on suspicion of turning his home into a “grow house.”

Florida v. Harris asks a more basic question of whether judges should be skeptical of Fido’s qualifications. It builds on research that shows a high rate of false alerts and cases of ma­nipu­la­tion by a dog’s handler.

Justice David H. Souter, also now retired, sounded the alarm about the reliability of police canines in his dissent in the 2005 case, writing that the “infallible dog . . . is a creation of legal fiction.”

The Florida Supreme Court went further last year in the Harris case when it threw out the evidence in a 2006 traffic stop in the Florida Panhandle that featured Aldo.

“Courts often accept the mythic dog with an almost superstitious faith,” Justice Barbara J. Pariente wrote. “The myth so completely has dominated the judicial psyche in those cases that the courts either assume the reliability of the sniff or address the question cursorily; the dog is the clear and consistent winner.”

The Florida court said that judges should look at the “totality of circumstances,” including a dog’s training and certification records, field performance, and evidence of the handler’s training and experience.

Categories: External Articles

Supreme Court Hears Terrorist Surveillance Case


by Publius
Posted October 31, 2012, 8:08 AM

Josh Gerstein reports for Politico:

More than a decade after the Sept. 11 attacks, the Supreme Court heard its first case Monday challenging the federal government’s terrorist-surveillance programs, but the justices gave no clear signal about whether they plan to allow a group of defense lawyers, journalists and human rights activists to go ahead with their attack on the wiretapping effort.

The justices are not, at this stage, considering the legality or constitutionality of the surveillance. They’re simply deciding whether the plaintiffs’ injuries are concrete enough to allow them to proceed with a lawsuit, which focuses on a law passed in 2008 seeking to apply Congress’s authority and additional safeguards to the surveillance program President George W. Bush implemented unilaterally.

During the hour-long argument in Clapper v. Amnesty International, Solicitor General Donald Verrilli argued that the lawyers, journalists and human rights activists who brought the suit are depending on “a cascade of speculation” about whether those individuals’ communications have been intercepted.

American Civil Liberties Union attorney Jameel Jaffer, arguing for the plaintiffs, called precautions the defense lawyers, journalists and others have taken to protect their communications “a reasonable reaction to the risk.” He said it was logical for the plaintiffs to assume the government is listening to phone calls and copying emails between the plaintiffs and various contacts abroad. In some instances, it means buying airline tickets to meet clients or witnesses in person, Jaffer said.

Justices Samuel Alito and Antonin Scalia seemed particularly hostile to the plaintiffs’ claim of standing, while Justices Sonia Sotomayor and Ruth Bader Ginsburg sounded sympathetic to letting the suit go forward. The others were harder to read. Justice Clarence Thomas, as usual, said nothing during the arguments.

As Verrilli opened his argument, Sotomayor jumped right in with one of the key questions that has loomed over challenges to the surveillance program, which is carried out in secret: “Is there anybody who has standing” to challenge it?

Verrilli said someone charged criminally using such surveillance could protest, as could a provider of phone or email services, but it’s unlikely the kinds of people who brought the present lawsuit would ever get specific notice their communications had been swept up.

“We acknowledge it may be difficult for a plaintiff to do so,” he said.
Moments later, Scalia indicated that in his view Sotomayor’s question was irrelevant.

“We’ve said that under our system of separated authority, it’s none of the court’s business” if no one has standing, he said.

Perhaps unsurprisingly, the justices — who are all attorneys — seemed most concerned about the lawyers who are plaintiffs in the case.

Justice Anthony Kennedy, who could wind up as the swing justice in the case, expressed particular concern about how the prospect of surveillance could impact lawyers’ ability to carry out their professional obligations to keep attorney-client communications secret.

”I think the ethics problem is a very substantial one. I think the lawyer would engage in malpractice if he talked on the telephone with some of these clients, given this statute,” Kennedy said.

Kennedy also said he found it difficult to believe that the government wasn’t aggressively using the powers Congress gave it in 2008.

“You are saying that the government has obtained this extraordinarily wide-reaching power and we have extraordinary risks that face this country, and the government’s not going to use it,” Kennedy said to Verrilli. “It’s hard for me to think that the government isn’t using all of the powers at its command under the law in order to protect this country. And you want to say: ‘Oh, well, don’t worry. That’s not happening.’”

“I’m not saying that at all,” Verrilli insisted. However, he said the Constitution required the plaintiffs to show they were harmed by “a concrete application” of the statute and they had not done so.

Verrilli also suggested that any precautions the plaintiffs were taking now would have been just as wise before the 2008 law, because the U.S. government has many other lawful ways of intercepting communications, such as acquiring them from foreign governments.

However, that argument seemed to get little traction even with the conservative justices, like Chief Justice John Roberts and Scalia.

“Do we parse injury that finely?” Scalia asked Verrilli. “Do you know of any other case where you’ve cut the baloney that fine?”

“This statute greatly expands the government’s surveillance power … Nobody denies that,” Justice Elena Kagan chimed in.

In several comments, Scalia seemed to indicate that he views the fact that the surveillance is overseen by a court — the Foreign Intelligence Surveillance Court — adequate to protect the constitutional rights of the plaintiffs. However, that court meets in secret and the targets of surveillance don’t get to present arguments about how their rights may be infringed.

Verrilli suggested that safeguards Congress placed in the 2008 law made it less necessary to allow the plaintiffs to proceed with their case.

Categories: External Articles

New SCOTUScast: Lozman v. City of Riviera Beach, Florida


by SCOTUScaster
Posted October 26, 2012, 3:01 PM

On October 1, the Supreme Court heard oral argument in Lozman v. City of Riviera Beach, Florida. The case considers whether a floating home that was unable to navigate and was indefinitely attached to a dock constituted a "vessel," and would be subject to federal maritime law.  Although the City has since obtained a court order requiring the sale of the home (due to non-payment of bills for city services) and then purchased it at the subsequent auction, the disposition of a $25,000 bond the City posted in the course of the litigation remains in question.

To discuss the case, we have Rod Sullivan, an assistant professor at Florida Coastal School of Law.

Click here to view this article on the source site »

Categories: SCOTUScasts

Supreme Court to Hear Case on International Eavesdropping


by Publius
Posted October 26, 2012, 9:31 AM

According to Reuters:

A debate over how freely the U.S. government can eavesdrop on international communications reaches a climax on Monday in the country's highest court.

At issue is a law passed by Congress in 2008 allowing the government to monitor the overseas communications of individuals without obtaining a warrant for each target.

The government has said it needs flexible surveillance power to help prevent strikes by foreign militants such as the attacks of Sept. 11, 2001.

But a group of attorneys, journalists and human rights organizations has challenged the law, saying thousands or even millions of innocent Americans are likely being monitored merely because they are communicating with people overseas.

In oral arguments on Monday, the U.S. Supreme Court will consider whether the challengers have the right to bring a suit against the law.

The government argues that, because the surveillance is secret, the challengers cannot prove they have been harmed by the law and therefore do not have standing to challenge it.

The challengers argue that they are harmed because they must travel to meet their clients and sources in person, to avoid wiretaps. Human Rights Watch, one of the challengers, has had to pay for more plane tickets, translators, drivers and guides because of the law, the group's general counsel, Dinah PoKempner, said.

Although the question of standing is a technical one, a victory for the government could end the challenge to the law.

If the government prevails at this stage, it will have shielded its surveillance laws from review by the courts, said Jameel Jaffer, a lawyer who represents the individuals and organizations challenging the law.

It's unclear how the high court will rule. Since the Sept. 11 attacks, the court has shown a reluctance to intervene in the executive branch's national security and intelligence-gathering procedures. The fact that the court took the case means that at least four justices saw problems with a lower court ruling allowing the case to proceed.

Congress passed the original Foreign Intelligence Surveillance Act in 1978 to clamp down on government spying, which had escalated in the 1960s and 1970s. The law required the government to submit a surveillance application to a special court for each overseas individual it was targeting.

After the attacks of Sept. 11, 2001, President George W. Bush authorized the National Security Agency's use of warrantless wiretaps in the hunt for people with ties to al Qaeda and other militant groups. The Bush administration ended that program in 2007, but Congress legalized parts of it in an overhaul of the Foreign Intelligence Surveillance Act in 2008.

Under the new law, the government no longer has to provide the court with specific names, phone numbers or email addresses of people to be tapped. Instead, it can apply for permission to conduct mass surveillance merely by stating that it plans to monitor non-U.S. persons overseas to gather foreign intelligence.

The challengers filed a lawsuit saying the new procedures violate the U.S. Constitution's Fourth Amendment protection against unreasonable search and seizures by allowing the government to sweep up communications with little judicial oversight.

One of the challengers, David Nevin, who is a lawyer for the accused Sept. 11 mastermind Khalid Sheikh Mohammed, said the 2008 law puts lawyers on the "horns of a dilemma."

Ethics rules prohibit lawyers from holding sensitive conversations with clients when there's a chance the government is eavesdropping, he said. As a result, Nevin limits what he says by phone and email and instead travels to Guantanamo Bay, Cuba, to talk to his client. But those constraints can make it harder to provide the effective legal assistance that ethical rules also require.

Categories: External Articles

Justice Scalia at Univ. of Wyoming: The Constitution Will Someday Be Destroyed


by Publius
Posted October 26, 2012, 7:25 AM

Yesterday Justice Scalia spoke at the University of Wyoming at an event made possible by a member of the law school's FedSoc chapter. The Billings Gazette reported on his talk:

“You guys don’t get to see Supreme Court justices,” Scalia said Thursday to a packed audience at the UW Fine Arts Center that included U.S. Sen. John Barrasso, R-Wyo., and all members of the Wyoming Supreme Court.

Scalia last visited the state in September 2008 when he spoke before the Wyoming State Bar in Cheyenne.

The hard-boiled constitutional "originalist," known for his linguistic austerity, showed his lighter side on Thursday. He was less a strident observer of the law and more of an entertainer, resembling Jackie Gleason with his jokes, slicked-back hair, baby-faced smile and New York attitude. Like any good performer, his campy side didn’t overshadow his message: the enormity of a “living Constitution.”

Scalia's ethos is that of many Wyomingites. The originalist moniker represents someone who believes the Constitution is an enduring document — not a flexible, living one that evolves with the standards of society.

“It doesn’t change,” he said.

The founding fathers feared a future generation that would misinterpret the Bill of Rights and wanted to restrain future societies from misconstruing the document, he said.

“A constitution that evolves isn’t worth a whole lot,” he said.

The Constitution is not something applicable to “whatever you care passionately about,” he said with a sardonic grin. A judge who believes in the living Constitution is a happy fellow, he said, because he goes home and tells his wife, “The Constitution means exactly what I thought I wanted it to be.”

Scalia denied that his approach always leads to the most conservative decisions. For example, he said he sided with the court majority in ruling that it's constitutional to allow burning of the U.S. flag. "If I were king," he said, "I'd throw that bearded, sandal-wearing weirdo in jail."

Scalia used the Eighth Amendment, which prohibits cruel and unusual punishments, as an example of the malleability some of the nation’s judges, lawyers and justices have applied to the Constitution.

The death penalty survived for 200 years without prior objection by states. But because of the flexible Constitution and its “evolving standards that mark the progress of a maturing society,” lawyers are turning the courts into legislators, he said.

“What do I know about revolving standards of decency?” he said. “You know who knows about revolving standards of decency? It’s Congress. Especially the House. I don’t even want to know what (the standards) are.”

The court is not an enforcer of the law and needs to abide by precedents, not by society’s interpretations, he said. A common misnomer, he said, is that a living Constitution gives people more freedoms.

He referred to the confrontation clause in the Sixth Amendment that had at one time taken the “right of confrontation away” from citizens. He helped to restore that right when he ruled in Crawford vs. Washington that statements from unavailable witnesses were not to be used in court.

Twenty years before the decision, it wasn’t heresy for testimony from an unavailable witness to be used in court, which prevented the accused from confronting the witness in a cross examination.

Scalia said adherence to the originalist philosophy is what helped overturn the flawed provision in the Sixth Amendment that had ignored hundreds of years of precedent.

"The Constitution will someday, at the end of the road, be destructed,” he said.

The Supreme Court is revising the Constitution “term by term,” and without an originalist philosophy, “what are you going to use?” he said.

He hinted that people would suggest “natural law” or the moralist ideals of John Rawles.

“Give me a break,” Scalia said.

Failing to stick to the original meaning of the Constitution only invites judges to decide on their own how to warp its meaning to fit their own reading, Scalia said. He said that explains the increasingly bitter contests over confirming Supreme Court justices, because senators all want one they believe will rule their way on hot-button issues.

"It's crazy, it's like a mini constitutional convention every time we confirm a new Supreme Court justice," Scalia said. He said he was unanimously confirmed with only two senators absent but probably couldn't get 60 votes today.

Categories: External Articles

Obama Comments on the Constitutionality of the Affordable Care Act


by Publius
Posted October 25, 2012, 4:20 PM

In a Rolling Stone interview with Douglas Brinkely, President Obama replied to questions regarding the constitutionality of his signature legislation:

How do you feel about Justice Roberts' ruling on the Affordable Care Act? Were you surprised?

I wasn't surprised. I was always confident that the Affordable Care Act, a.k.a. Obamacare, was constitutional. It was interesting to see them, or Justice Roberts in particular, take the approach that this was constitutional under the taxing power. The truth is that if you look at the precedents dating back to the 1930s, this was clearly constitutional under the Commerce Clause. I think Justice Roberts made a decision that allowed him to preserve the law but allowed him to keep in reserve the desire, maybe, to scale back Congress' power under the Commerce Clause in future cases.

What made you so certain that the law was constitutional?

It's hard to dispute that health care is a national issue of massive importance. It takes up 17 or 18 percent of our entire economy; it touches on everybody's lives; it is a massive burden on businesses, on our federal budget and on families. It's practiced across state lines. So the notion that Congress could not take a comprehensive approach to that problem the way we have makes no sense.

I am very proud of the steps we've taken already: making sure that insurance companies can't impose lifetime limits that could leave families high and dry if somebody gets a severe illness. Parents being able to keep their kids on their own plans until they're 26 years old. The rebates that are already going out to customers because we've said to insurance companies that you've got to spend the dollars you collect in premiums on actually providing care, not just on overhead and CEO salaries. The $600 a year that seniors are saving on their prescription drugs. The tax breaks we're providing small businesses in order to provide health insurance for their families. The cost-control measures that are trying to develop better ways of providing care. All those things are already happening. By 2014, people who have pre-existing conditions or individuals who are paying 18 or 20 percent more for health insurance than somebody on a big group plan – they're going to have a chance to get affordable care, and we'll provide tax credits to the folks who need it.

So this is a model that we know can work. It's working in Massachusetts right now – you have 98 percent of adults and 99.5 percent of kids in Massachusetts with health insurance. For the greatest nation on Earth not to make sure that people aren't going bankrupt when they get sick – that was a blot on our society. And for us to take this step forward is something that is really going to make a big difference for millions of families for decades to come. It also gives us our best opportunity to start really going after the waste and inefficiencies of the system, so that we can start cutting back on the health care inflation that is driving our deficit and hurting families and businesses every single day.

You said, "a.k.a. Obamacare." Do you mind if historians call the achievement Obamacare?

'll be very proud. Because I'm confident that I'm going to win this election, and that we're going to implement it over the next four years. Just like Medicare and Social Security, as time goes on, as people see what it does, as it gets refined and improved, people will say, "This was the last piece to our basic social compact" – providing people with some core security from the financial burdens of an illness or bad luck.


Categories: External Articles

New SCOTUScast: Tibbals v. Carter and Ryan v. Gonzales


by SCOTUScaster
Posted October 25, 2012, 3:58 PM

On October 9, the Supreme Court heard oral argument in Tibbals v. Carter and Ryan v. Gonzales.  These death penalty cases consider the scope of the right to counsel in federal habeas proceedings where the convicted individual’s mental competency is at issue--whether a  federal court can put a state prisoner’s habeas claim on perpetual hold until mental competency is restored.  The specific question in Tibbals v. Carter is whether a capital prisoner possesses a “right to competence” in federal habeas proceedings under the Supreme Court’s 1966 decision in Rees v. Peyton.  The analogous question in Ryan v. Gonzales is whether a state inmate’s right to counsel in habeas proceedings (where the underlying offense was a capital offense) includes a right to a stay of habeas proceedings when the inmate is not competent to assist counsel.

To discuss the case, we have Ronald Eisenberg, who is the Deputy District Attorney for the Law Division at the Philadelphia District Attorney’s Office.

Click here to view this article on the source site »

Categories: SCOTUScasts

Reviewing the Influence of SCOTUSblog’s Tom Goldstein


by Publius
Posted October 25, 2012, 10:15 AM

Stephanie Mencimer profiles Tom Goldstein, the man behind SCOTUSblog, for The Atlantic:

[Goldstein is the] founder and publisher of SCOTUSblog, which in the 10 years since its founding has grown into the Court’s leading chronicler. In other words, he runs a Web site that covers the very body he argues cases in front of. And yet, even as outsiders rely on him for insider insights, many Court insiders see him as something of an outsider. While SCOTUSblog devotes more resources to covering the Court than any other media outlet in history, the Court refuses to give anyone from the blog a press pass.

The Court’s stance toward Goldstein’s Web site encapsulates its anachronistic approach to communicating with the outside world. Keep in mind that in 2012, as a member of the press, you still can’t blog or tweet or even take notes on a laptop inside the courtroom. And yet the Court’s ambivalence toward modern media is to some extent SCOTUSblog’s gain. The site’s greatest traffic surge to date came on the morning of the Affordable Care Act decision, in June, when readership jumped from about 40,000 page views a day to more than 3 million—leading Goldstein to immodestly declare SCOTUSblog “the subject of perhaps greater demand than any other site on the Internet—ever.” Much of the credit for that traffic goes to the site’s singularly fast, accurate reporting on the decision, but it didn’t hurt that the Court was so unprepared for a traffic surge that its own Web site crashed, preventing it from releasing the decision.

To understand Goldstein’s unusual relationship with the Court, you must back up to the beginning of his career. Most members of the Supreme Court bar studied law at one of just three schools (Harvard, Yale, Stanford), then clerked for a justice or worked in the Office of the Solicitor General. Goldstein did none of these things. “I was rejected by every law school I applied to,” he told me.

After a well-connected cousin of his stepmother intervened, Goldstein was admitted to American University. He graduated from law school in 1995, and took a job at a big law firm, where he perfected a system for identifying potential Supreme Court cases (it involved a list of about 300 terms that he would type into a legal database—circuit conflict was one). He left the firm before long, and began cold-calling the parties’ lawyers, offering to appeal their cases for free. The tactic scandalized the Court’s tradition-bound practitioners. In 2000, John Roberts, then a highly regarded member of the Court bar, scoffed: “If I’m going to have heart-bypass surgery, I wouldn’t go to the surgeon who calls me up.” But Goldstein’s approach worked. In just 15 years, he has personally argued 25 cases before the Court, an extraordinary number for a 42-year-old. Meanwhile, the white-shoe firms whose partners once regarded Goldstein with disdain have adopted his method.

Which is not to say that Goldstein was made for the job of Supreme Court litigator. If you didn’t know him—if you were sizing him up on the basis of his entrepreneurial zeal, his disregard for decorum, his love of fast cars and poker, his ability to bluff and take risks—you might mistake him for an old-school plaintiffs’ lawyer. (He knows it, too: he once parodied himself in a spoof TV ad that declared, “If you’ve got a circuit conflict, you’ve got a lawyer! Call 1-CERTIORARI.”)

Like most members of the Court bar, Goldstein adroitly hops from First Amendment cases to criminal ones, from tort law to intellectual-property disputes; in his spare time, he teaches Supreme Court litigation at Stanford and Harvard. Even so, he says that the law’s intellectual puzzles are not his favorite thing. Nor is writing briefs, the mainstay of Supreme Court practice. “I really like building the business more,” he told me in August, as we sat in the small Washington, D.C., office he shares with his wife and law partner, Amy Howe, and various SCOTUSblog staffers.

SCOTUSblog wasn’t originally conceived as a money-making enterprise—though Goldstein did hope that it would attract new clients to his firm—but it quickly came to monopolize coverage of the Court. In fact, many news organizations no longer bother sending reporters to the Court, because they can get what they need off the blog. (Goldstein eventually got around his own lack of press credentials by hiring someone who already had them, 81-year-old Lyle Denniston, who works for WBUR in Boston when he’s not writing for SCOTUSblog.) Now, after years of being subsidized by Goldstein, the site is profitable, thanks to a sponsorship from Bloomberg Law. Whether it can grow beyond its core audience of Court junkies is unclear, however: its studiously apolitical contents (the “Petition of the Day,” headlines like “The Limits of Aristotelian Constitutional Jurisprudence”) can strike nonlawyers as dull, even impenetrable.

When Goldstein talks about his business, though, he isn’t merely talking about SCOTUSblog. For one thing, he has a thriving business representing online poker companies. One of the Court’s most quoted observers, he has also developed a reputation as a Supreme Court seer, someone with a claim on understanding one of Washington’s most opaque institutions. This role is turning into a vocation in its own right: his predictive skills are coveted by TV producers, while hedge-fund managers pay him to evaluate cases they’re betting on.

Categories: External Articles

Could the Election Tip the Balance of the Michigan Supreme Court?


by Publius
Posted October 25, 2012, 7:25 AM

Collin Levy writes in the Wall Street Journal's Political Diary:

Judicial races drew national attention in Wisconsin this year as unions tried to tip the balance of the state Supreme Court against Gov. Scott Walker's union reforms. Over in Michigan, the next battle is playing out, with conservatives fighting to maintain their 4-3 majority on the court with three of the seven seats up for grabs next month.

The stakes are particularly high for state labor unions who are pushing a ballot proposal that would allow them to challenge any current or future law dealing with collective bargaining. If the measure passes, many of those battles could wind up with the state Supreme Court. The Detroit News reports that state Democrats tagged the judicial elections this year as their "last, best chance" of regaining control of the court.

Michigan legal watchers also worry that a flip of the court could undermine the state's economic climate. The court's jurisprudence has been especially noteworthy in the area of civil liability, where the court's conservative majority has limited plaintiffs attorneys' attempts to test new theories of liability. While state Supreme Courts in Ohio, Florida, Illinois, Wisconsin and Georgia have all blocked tort reform laws passed by the state legislatures, Michigan's court has stood up to the tort bar and helped improve the legal climate for business in the state.

Among the conservative incumbents in Michigan is Justice Stephen Markham, who ran the Office of Legal Policy in President Reagan's Justice Department and has been credited with helping shape the Reagan administration's commitment to appointing a new generation of "textualist" judges. Justice Brian Zahra, who was appointed by Republican Gov. Rick Snyder to the seat vacated by Justice Maura Corrigan, is also contesting his seat against state District Court Judge Shelia Johnson.

According to the Michigan Campaign Finance Network, Justice Markman and Justice Zahra have raised more than $400,000. Democratic-nominee Bridget Mary McCormack, a law professor at the University of Michigan, has raised more than $300,000. Her campaign may also be the only state Supreme Court race to claim a reunion of the cast of the political drama "The West Wing." Ms. McCormack's sister, Mary, was on the show. As the fictional President Bartlet would say, what's next?

Categories: External Articles

New SCOTUScast: Fisher v. University of Texas at Austin


by SCOTUScaster
Posted October 24, 2012, 4:59 PM

On October 10, the Supreme Court heard oral argument in Fisher v. University of Texas at Austin.  The case considers whether using race as a factor in undergraduate admissions decisions is permitted by the Equal Protection Clause.

To discuss the case, we have Gail Heriot, professor of law at University of San Diego School of Law.

Click here to view this article on the source site »

Categories: SCOTUScasts

Will Ninth Circuit Judge’s Death Affect High-Stakes Climate Case?


by Publius
Posted October 24, 2012, 3:03 PM

Greenwire reports:

The outcome of a prominent climate case has become even more shrouded in mystery after one of the three judges considering the matter died this week.

Judge Betty Binns Fletcher, who died Monday at the age of 89, was on the three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals that is weighing the lawfulness of California's new low carbon fuel standard, which is aimed at lowering the carbon intensity of transportation fuels by about 10 percent by 2020. It's part of the state's landmark climate change law, commonly known as A.B. 32.

The appeals court heard arguments in the case Oct. 16. Fletcher's death means the court will draw at random a new judge to be appointed to the panel. The panel could ask the parties to reargue the case, or the new judge could decide to rely instead on the video of the oral argument and the briefs filed by the parties.

"We don't know how the panel tentatively decided the case after argument, but a new judge could definitely change the dynamic and even the outcome, especially since presumably there isn't an opinion in circulation," said Arthur Hellman, a law professor at the University of Pittsburgh School of Law.

Those challenging the regulation include out-of-state ethanol producers and oil refiners, who claim they are unlawfully injured because the law takes into account the life-cycle greenhouse gas emissions of fuel, including emissions produced during production and transportation to California. The challengers say the regulation discriminates against other states in violation of the Commerce Clause of the Constitution, which allows Congress to regulate commerce among the states but stops states from enacting legislation that puts up obstacles to interstate commerce.

The other panel members hearing the case are Judge Mary Murguia, a President Obama appointee, and Senior Judge Dorothy Nelson, who was appointed by President Carter. The October argument suggested that Murguia in particular had some concerns about how regulators had taken life-cycle emissions into account.

Fletcher, who was based in Seattle, was a prominent liberal voice on the appeals court originally appointed by Carter in 1979. She took senior status in 1998 to pave the way for the Senate to confirm her son, William Fletcher, to the same court.

She continued to hear a full slate of cases, including 182 involving oral argument last year, according to a court news release.

Among her more prominent opinions was a 2008 National Environmental Policy Act (NEPA) case, Natural Resources Defense Council v. Winter, in which the court upheld an injunction that stopped the Navy from conducting sonar exercises off the coast of California due to the potential impact on whales and other marine mammals. Fletcher concluded that the Navy had violated NEPA by failing to issue an environmental impact statement. The Supreme Court eventually reversed the appeals court.

Fletcher also authored an opinion in a 1981 case, Pacific Legal Foundation v. State Energy Resources Conservation and Development Commission, that upheld a California moratorium on the construction of new nuclear plants.

Categories: External Articles

Don Franzen Interviews Justice Scalia on “Reading Law”


by Publius
Posted October 24, 2012, 10:06 AM

The Los Angeles Review of Books features Don Franzen's extensive interview of Justice Scalia on his new book, Reading Law: The Interpretation of Legal Texts. The interview begins:

FRANZEN: Your Honor, there are already so many treatises written on interpreting text and canons of interpretation, why did you and your co-writer Professor Garner feel that it was time to write this book on “reading law”?

SCALIA: Oh, I don’t think there are that many treatises. I believe that the last treatise that really went through the canons systematically is a hundred years old. The canons have simply been disregarded in recent years. Indeed, they’ve been run down by the academy. So, that’s why we thought it was necessary to teach textualists — those who want to be textualists — how to do textualism. You can’t do it without knowing what are the clues to the meaning of a text.

FRANZEN: I’ve had at least one appellate case that turned on a textual issue — whether or not a particular canon applied. It does seem the treatment of the canons in the cases is sort of haphazard.

SCALIA: They are simply not taught systematically in the law schools, and you’re quite right to the extent that students learn them they learn them episodically — in this case, that case and so forth. And they ought to be taught systematically, I think.

FRANZEN: Should that be a class in law school?

SCALIA: I think there should certainly be a course on statutory interpretation, and more and more law schools have begun to have such courses. But none of them, as far as I know, go systematically through the canons, because there’s no text that has them.

FRANZEN: You and Professor Garner of course are both advocates of “textualism,” the idea that meaning is to be found in the governing text, and also for “originalism,” that you are looking for the “meaning that the text has borne from its inception” — here, I’m quoting from the book. And of course you reject judicial speculation about either what the text means from content outside of the text or the “desirability of the consequences of the reading” — that’s also from your introduction. Text of course governs, but what would you say to the argument that the ability to rely on the original meaning weakens over time? Is there a difference between applying textualism to a contract written in 2008 versus a document written in 1787?

SCALIA: No, it seems to me that the parties agreed to what they agreed to, and I don’t know why it would be fair to give one side or the other a change in the obligations simply because of the passage of time. They said what they said, and they agreed to what they agreed to. I don’t see how the antiquity of the text has any bearing on whether its proper to give it the meaning that the parties that drafted it — if it’s a bilateral contract, or the public that received it, if it’s a statute or an ordinance — understood it to mean.

FRANZEN: Some would be surprised to see that you actually argue against strict construction. In fact, you include strict construction in your list of thirteen fallacies. Most people think textualism, originalism, and strict construction are sort of a trinity.

SCALIA: I think strict construction gives a bad name to textualism. My approach is to give the text a reasonable meaning that it bore when it was adopted. For instance, if you interpret strictly the First Amendment, it would be the case that Congress could censor handwritten letters, because, strictly, it covers only freedom of speech and of the press. A handwritten letter is neither speech nor press. Come on, that’s absurd, that’s not the meaning of the First Amendment. The First Amendment reasonably understood is a guarantee of freedom of expression, whether handwritten or oral, or semaphore or burning a flag.

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Fifth Circuit Sides with Monks in Casket-Selling Case


by Publius
Posted October 24, 2012, 7:27 AM

The New Orleans Times-Picayune reports on a Fifth Circuit decision from yesterday that can be found here:

In a sometimes harshly worded ruling, a panel of federal appellate judges Tuesday evening smacked down the Louisiana funeral board's continued attempts to prevent the St. Joseph Abbey monks from selling their hand-crafted caskets. "The great deference due state economic regulation (does not require) courts to accept nonsensical explanations for naked transfers of wealth," wrote Judges Patrick Higginbotham, Catharina Haynes and Stephen A. Higginson of the 5th U.S. Circuit Court of Appeals in New Orleans. "We insist that Louisiana's rules not be irrational."

The appellate judges sent the case to the Louisiana Supreme Court, refusing to consider the funeral board's appeal of a previous court's ruling that found it unconstitutional for the state to give funeral directors exclusive rights to sell caskets.

"Simply put, there is nothing in the licensing procedures that bestows any benefit to the public in the context of the retail sale of caskets," U.S. District Court Judge Stanwood R. Duval Jr. ruled in July 2011. "The license has no bearing on the manufacturing and sale of coffins. It appears that the sole reason for these laws is the economic protection of the funeral industry," which he wrote is not "a valid government interest."

After Hurricane Katrina destroyed the abbey's timberland outside Covington, a longtime a source of revenue, the monks decided to sell their handmade caskets as a way to supplement their income. The abbey invested $200,000 in St. Joseph Woodworks and sold two types of caskets, "monastic" and "traditional," priced at $1,500 and $2,000 respectively, "significantly lower than those offered by funeral homes," the court ruling stated.

"To be sure, Louisiana does not regulate the use of a casket, container, or other enclosure for the burial remains; has no requirements for the construction or design of caskets; and does not require that caskets be sealed," according to the court. "Individuals may construct their own caskets for funerals in Louisiana or purchase caskets from out-of-state suppliers via the internet. Indeed, no Louisiana law even requires a person to be buried in a casket."

The monks did not offer funeral services, prepare the body for burial or participate in funerals, except as pastors.

In response, the Louisiana Board of Embalmers and Funeral Directors sent the monks a cease-and-desist letter, threatening thousands of dollars in fines and up to 180 days in prison based on a law prohibiting the sale of coffins without a funeral director's license.

In their Tuesday ruling, the appellate judges took aim at that regulation, stating its sole purpose is to restrict the intrastate sales of coffins "to funeral homes. There are no other strictures over their quality or use. The district court found the state's scheme to be the last of its kind in the nation. The state board had never succeeded in any enforcement actions against a third party seller prior to its effort to halt the abbey's consumer sales."

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