FedSoc Blog

Obama Administration to Urge Justices to End California Gay Marriage Ban

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by Publius
Posted February 28, 2013, 4:53 PM

According to The New York Times:

The Obama administration will throw its support behind a broad claim for marriage equality, urging the Supreme Court to rule that voters in California were not entitled to ban same-sex marriage there, according to an administration official. 

The federal government is not a party to the case, Hollingsworth v. Perry, No. 12-144, and was not required to take a position in it. But the lawyers who filed the challenge, Theodore B. Olson and David Boies, along with gay rights groups, lobbied hard for the brief, saying the administration could not stay silent on the issue.

The administration is expected to file the brief Thursday.

The broad outlines of the administration’s position were not a surprise, given that it filed a brief last week in a same-sex marriage case in which it is a party, United States v. Windsor, No. 12-307. But that case presents only the narrower question of the constitutionality of part of the federal Defense of Marriage Act of 1996, which defines marriage as the union of a man and a woman for the purposes of more than 1,000 federal laws and regulations.

The Supreme Court’s ruling in the Defense of Marriage Act case will at most decide whether the federal government can discriminate against same-sex couples even if they married in states that allow such unions. Nine states and the District of Columbia allow same-sex marriage.

The case from California presents the broader question of whether there is a constitutional right to same-sex marriage in the states that do not allow it, which is why the new brief is significant. It is hardly certain, however, that the Supreme Court will end up deciding that broad question. The court may well avoid the issue on technical grounds or rule in a way that applies only to California.

Until not long ago, the administration was thought likely to stay out of the California case, partly as a matter of historical practice and partly to be true to President Obama’s public position on same-sex marriage.

The federal government took no position in 1967 in Loving v. Virginia, the case in which the Supreme Court struck down bans on interracial marriage, or in 2003 in the last major gay rights case, Lawrence v. Texas, which struck down state laws making gay sex a crime.

Moreover, when Mr. Obama announced his support for same-sex marriage, he said the matter was for the states to decide.

“I continue to believe,” he told Robin Roberts of ABC News, “that this is an issue that is going to be worked out at the local level, because historically, this has not been a federal issue, what’s recognized as a marriage.”

That statement is not hard to reconcile with the administration’s position in the case concerning the 1996 federal law. As Mr. Obama said in May, the law “tried to federalize what has historically been state law.” But the views Mr. Obama expressed in May are in tension with the position taken by his lawyers in the new brief, which calls for federal intervention to override a state law. . . .

 

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New SCOTUScast: Shelby County v. Holder

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by SCOTUScaster
Posted February 28, 2013, 2:44 PM

On February 27, the Supreme Court heard oral argument in Shelby County v. Holder. The question in this case is whether Congress’ 2006 decision to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.

To discuss the case, we have Michael Carvin, a partner at Jones Day.

 

Click here to view this article on the source site »

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Roger Clegg Analyzes Oral Argument in Voting Rights Case

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by Publius
Posted February 28, 2013, 10:37 AM

Roger Clegg--president and general counsel of the Center for Equal Opportunity, which joined an amicus brief filed by Pacific Legal Foundation and supporting the plaintiff--comments at SCOTUSblog:

I’ll begin with the box score:  Chief Justice Roberts, Justice Scalia, and Justice Alito gave no indication that they might uphold Section 5, and while Justice Thomas asked no questions today he wrote in 2009 (in NAMUDNO v. Holder) that he thinks Section 5 is unconstitutional.  Conversely, Justices Sotomayor, Kagan, and Ginsburg gave no indication that they had any problem with Section 5.  Justice Kennedy was generally skeptical of Section 5’s constitutionality, but had a question or two that suggests he is perhaps not as skeptical as the other conservatives; Justice Breyer seemed generally supportive of Section 5’s constitutionality, but he had some moments where he certainly evinced more skepticism than the other liberals.   I’ll also note that Justice Kennedy seemed to become more skeptical of Section 5 as the argument went on – and so did Justice Breyer.

The bottom line, then, is that those who predicted that Section 5 is in trouble were right.

There were basically two themes developed at the argument:  How much deference is due Congress, and how persuasive is the evidence that the covered jurisdictions are worse actors today than the non-covered jurisdictions?  Each was dramatized by an that exchange would be a sound bite, if the Court had sound bites.

With the latter theme, indeed, came perhaps the most dramatic part of the argument:  Chief Justice Roberts’s questioning of the Solicitor General at the beginning of his time, in which the Chief Justice showed that, at least by the most obvious metrics, Mississippi is much less deserving of coverage than Massachusetts.

The former theme provided the most tension between the justices. Justice Scalia bluntly noted – twice – that Congress is very unlikely ever to do anything but reauthorize Section 5, since politically there is no reason now to vote against it and every reason to vote in favor of it.

In making this point, Justice Scalia used the phrase “racial entitlement” to describe one reason why a statute like this will never be allowed to expire.  Justice Sotomayor apparently took offense at this phrase, and expressed that to Justice Scalia by asking the plaintiff’s counsel, on rebuttal, whether he thought the right to vote was a racial entitlement – suggesting, that is, that this was Justice Scalia’s position.

I think, though, that what Justice Scalia was adverting to was the fact that Section 5 is now used to create and protect voting districts that are identifiably black (or Latino).  It does this through the concept of “vote dilution” and Section 5’s “effects” test, both of which were also alluded at the argument, though this phenomenon was never discussed in as much detail as it might have been.

Indeed, I would have like to have seen more discussion of this particular racial entitlement, and not only so that Justices Scalia and Sotomayor will better understand each other.  As Joshua Thompson and I discussed on National Review Online earlier this week, it is the principal use that is made nowadays of Section 5 – and using racial gerrymandering to create segregated voting districts is not only completely inconsistent with the ideals of the civil rights movement, but raises additional constitutional problems for Section 5.

A lesser but still important theme at oral argument today was how Section 5 fits in with other portions of the Voting Rights Act – particularly one (Section 2) that might take up the slack if Section 5 were struck down and, conversely, one that makes the singling out of some jurisdictions by Section 5 seem more reasonable (the bail-out provision).

I’ll end by noting the adage that it’s hard to win a case at oral argument, but quite possible to lose one.  I don’t think that any of the three advocates lost their case today.  But I do think that Section 5’s days are numbered – and rightly so.

I’ll begin with the box score:  Chief Justice Roberts, Justice Scalia, and Justice Alito gave no indication that they might uphold Section 5, and while Justice Thomas asked no questions today he wrote in 2009 (in NAMUDNO v. Holder) that he thinks Section 5 is unconstitutional.  Conversely, Justices Sotomayor, Kagan, and Ginsburg gave no indication that they had any problem with Section 5.  Justice Kennedy was generally skeptical of Section 5’s constitutionality, but had a question or two that suggests he is perhaps not as skeptical as the other conservatives; Justice Breyer seemed generally supportive of Section 5’s constitutionality, but he had some moments where he certainly evinced more skepticism than the other liberals.   I’ll also note that Justice Kennedy seemed to become more skeptical of Section 5 as the argument went on – and so did Justice Breyer.

The bottom line, then, is that those who predicted that Section 5 is in trouble were right.

There were basically two themes developed at the argument:  How much deference is due Congress, and how persuasive is the evidence that the covered jurisdictions are worse actors today than the non-covered jurisdictions?  Each was dramatized by an that exchange would be a sound bite, if the Court had sound bites.

With the latter theme, indeed, came perhaps the most dramatic part of the argument:  Chief Justice Roberts’s questioning of the Solicitor General at the beginning of his time, in which the Chief Justice showed that, at least by the most obvious metrics, Mississippi is much less deserving of coverage than Massachusetts.

The former theme provided the most tension between the justices. Justice Scalia bluntly noted – twice – that Congress is very unlikely ever to do anything but reauthorize Section 5, since politically there is no reason now to vote against it and every reason to vote in favor of it.

In making this point, Justice Scalia used the phrase “racial entitlement” to describe one reason why a statute like this will never be allowed to expire.  Justice Sotomayor apparently took offense at this phrase, and expressed that to Justice Scalia by asking the plaintiff’s counsel, on rebuttal, whether he thought the right to vote was a racial entitlement – suggesting, that is, that this was Justice Scalia’s position.

I think, though, that what Justice Scalia was adverting to was the fact that Section 5 is now used to create and protect voting districts that are identifiably black (or Latino).  It does this through the concept of “vote dilution” and Section 5’s “effects” test, both of which were also alluded at the argument, though this phenomenon was never discussed in as much detail as it might have been.

Indeed, I would have like to have seen more discussion of this particular racial entitlement, and not only so that Justices Scalia and Sotomayor will better understand each other.  As Joshua Thompson and I discussed on National Review Online earlier this week, it is the principal use that is made nowadays of Section 5 – and using racial gerrymandering to create segregated voting districts is not only completely inconsistent with the ideals of the civil rights movement, but raises additional constitutional problems for Section 5.

A lesser but still important theme at oral argument today was how Section 5 fits in with other portions of the Voting Rights Act – particularly one (Section 2) that might take up the slack if Section 5 were struck down and, conversely, one that makes the singling out of some jurisdictions by Section 5 seem more reasonable (the bail-out provision).

I’ll end by noting the adage that it’s hard to win a case at oral argument, but quite possible to lose one.  I don’t think that any of the three advocates lost their case today.  But I do think that Section 5’s days are numbered – and rightly so.

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New SCOTUScast: Bailey v. United States

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by SCOTUScaster
Posted February 27, 2013, 6:16 PM

On February 19, the Supreme Court announced its decision in Bailey v. United States. The question in this case was whether, under the Court’s 1981 decision in Michigan v. Summers, police officers may detain an individual incident to the execution of a search warrant when the individual has left the immediate vicinity of the premises before execution of the warrant.

In an opinion delivered by Justice Kennedy, the Court held by a vote of 6-3 that the detention permitted under Summers is confined to the immediate vicinity of the premises to be searched under the warrant.  The defendant in this case, the Court determined, was detained outside the immediate vicinity of the premises--and his detention thus could not be justified under Summers.  The Court therefore reversed the decision of the court of appeals, but remanded the case for consideration of whether, independent of Summers, the defendant’s detention was justified under the “reasonable suspicion” standard set forth in Terry v. Ohio.

Chief Justice Roberts and Justices Scalia, Ginsburg, Sotomayor and Kagan joined Justice Kennedy’s majority opinion.  Justice Scalia filed a concurring opinion, which was joined by Justices Ginsburg and Kagan.  Justice Breyer filed a dissenting opinion, which was joined by Justices Thomas and Alito.

To discuss the case, we have Stephen Henderson, a Professor of Law at the University of Oklahoma College of Law.

Click here to view this article on the source site »

Categories: SCOTUScasts

Justices Sharply Divided Over Voting Rights Act

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by Publius
Posted February 27, 2013, 5:37 PM

Bloomberg News reports:

The U.S. Supreme Court cast doubt on the fate of the Voting Rights Act, the landmark 1965 law that opened the polls to millions of Southern black people, in a fast-paced argument that revealed a deep divide among the justices.

In a session that went 15 minutes beyond its allotted time and featured a rare direct exchange between two justices, the Republican-appointed majority questioned the requirement that all or parts of 16 states get federal clearance before changing their voting rules. The court’s Democratic appointees voiced support for the law.

The case threatens a signature achievement of the civil rights movement, a law aimed at discrimination that kept generations of Southern blacks from voting. Together with a fight over university affirmative action, the case may make this Supreme Court term a watershed for the legal rules governing race, possibly rolling back decades-old protections. The court will rule in both cases by June.

The skeptics today included the likely swing vote, Justice Anthony Kennedy, who faulted Congress for extending the measure in 2006 while relying on a decades-old formula for determining which states were covered.

“If Congress is going to single out separate states by name, it should do it by name,” Kennedy said. Otherwise, he said Congress should point to factors that are relevant today. “And Congress just didn’t have the time or energy to do this. It just re-enacted it.”

Chief Justice John Roberts similarly suggested he was poised to strike down the so-called preclearance requirement. Roberts asked U.S. Solicitor General Donald Verrilli whether the government’s position was “that the citizens in the South are more racist than citizens in the North.” Verrilli said that wasn’t the government’s contention.

The Justice Department has used the preclearance requirement, also known as Section 5, to object to more than 2,400 state and local voting changes since 1982. The Obama administration last year invoked Section 5 in stopping Republican-backed voter-identification laws in Texas and South Carolina from going into effect.

A separate section of the law, known as Section 2, allows lawsuits over voting discrimination nationwide and isn’t affected by the high court case. Civil-rights advocates say that type of after-the-fact enforcement isn’t enough to guard against discriminatory practices.

Congress extended the law for 25 years in 2006, voting 98-0 in the Senate and 390-33 in the House. Then-President George W. Bush, a Republican, signed the measure into law.

Civil rights leaders Al Sharpton and Jesse Jackson listened to the argument today in the packed courtroom, as other supporters of the Voting Rights Act rallied on the sidewalk in front of the court.

Perhaps the sharpest exchange of the session came when Justice Antonin Scalia questioned whether the lopsided congressional vote meant anything. With his trademark sarcasm, Scalia said the evidence of Southern racism must have been “even clearer” to Congress in 2006 than in previous decades.

That prompted Justice Elena Kagan to break with court protocol and address a fellow justice by name.

“That sounds like a good argument to me, Justice Scalia,” she said. “It was clear to 98 senators, including every senator from a covered state, who decided that there was a continuing need for this piece of legislation.”

“Or decided that perhaps they’d better not vote against it,” Scalia responded, without giving the lawyer at the podium a chance to weigh in.

Scalia later said the Senate’s unanimity was “very likely attributable to a phenomenon that is called perpetuation of racial entitlement.”

He added, “Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.” . . .

Last year, the Federalist Society produced a podcast on the subject "Is Section 5 of the Voting Rights Act Constitutional?" You can listen to it here.

  • Ms. Nancy Abudu, Staff Counsel, The American Civil Liberties Union's Voting Rights Project
  • Mr. Hans von Spakovsky, Senior Legal Fellow, The Heritage Foundation's Center for Legal and Judicial Studies
  • Moderator: Mr. Roger Clegg, President and General Counsel, The Center for Equal Opportunity
  • Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society
  • - See more at: http://www.fed-soc.org/publications/detail/is-section-5-of-the-voting-rights-act-constitutional-podcast#sthash.rHltmZAn.dpuf

 

  • Ms. Nancy Abudu, Staff Counsel, The American Civil Liberties Union's Voting Rights Project
  • Mr. Hans von Spakovsky, Senior Legal Fellow, The Heritage Foundation's Center for Legal and Judicial Studies
  • Moderator: Mr. Roger Clegg, President and General Counsel, The Center for Equal Opportunity
  • Introduction: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society
  • - See more at: http://www.fed-soc.org/publications/detail/is-section-5-of-the-voting-rights-act-constitutional-podcast#sthash.rHltmZAn.dpuf

 

Is Section 5 of the Voting Rights Act Constitutional? - See more at: http://www.fed-soc.org/publications/detail/is-section-5-of-the-voting-rights-act-constitutional-podcast#sthash.rHltmZAn.dpuf
Is Section 5 of the Voting Rights Act Constitutional? - See more at: http://www.fed-soc.org/publications/detail/is-section-5-of-the-voting-rights-act-constitutional-podcast#sthash.rHltmZAn.dpuf
Is Section 5 of the Voting Rights Act Constitutional? - See more at: http://www.fed-soc.org/publications/detail/is-section-5-of-the-voting-rights-act-constitutional-podcast#sthash.rHltmZAn.dpuf

 

Is Section 5 of the Voting Rights Act Constitutional? - See more at: http://www.fed-soc.org/publications/detail/is-section-5-of-the-voting-rights-act-constitutional-podcast#sthash.rHltmZAn.dpuf

 

Is Section 5 of the Voting Rights Act Constitutional? - See more at: http://www.fed-soc.org/publications/detail/is-section-5-of-the-voting-rights-act-constitutional-podcast#sthash.rHltmZAn.dpuf

 

 

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How Regrettable Is the Republican Amicus Brief in the Prop. 8 SCOTUS Case?

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by Publius
Posted February 27, 2013, 1:02 PM

Carrie Severino comments at National Review Online:

I saw the New York Times headline “Republicans Sign Brief in Support of Gay Marriage” and expected to read that prominent members of the conservative legal movement had endorsed a constitutional right to gay marriage. Turns out the news was far less interesting, in that the brief seems to have been signed by all of the attendees of the latest No Labels rally. Perhaps the list of originalists is in development, or being held in reserve for Round II.    

I agree with Ed that the conservative justices ought to feel pretty insulted by the notion — advanced in the Times story — that their approach to the constitutional questions will be dictated by the number and stature of the Republicans who signed the brief. But let’s assume for a moment that names on briefs matter a great deal to the targeted justices, i.e. those justices who have claimed some level of adherence to judicial restraint or the notion that judges ought to be bound by the text and original meaning of the U.S. Constitution. Has anyone ever known Christine Todd Whitman, William Weld, and Jon Huntsman as people who are even remotely interested in the principles that gave rise to the conservative legal movement, or any of the ideas set forth in books like The Tempting of America or A Matter of Interpretation? Or, to put it another way: Are these really the best people to make any argument whatsoever about the text and original meaning of the U.S. Constitution, let alone whether it prohibits the people of California from deciding how they want to define marriage? Perhaps the more appropriate headline would have been “Politicians of Middling Significance Lobby Justices to Adopt Fashionable Political Views.”  

Jokes aside, gay-rights advocates seem to be changing public opinion and achieving reform through the political process. Why risk that progress by catalyzing another Roe v. Wade moment that could distort our political process for many decades to come? The Republicans and “legal analysts” cited by the Times might not care about that question, but some prominent gay-rights advocates do. As Charles Lane put it:

We’ll never know what would have happened if the court had let the democratic process play out in the matter of abortion. What we do know is that gay marriage also confronts the unelected justices with delicate issues of morality, equal rights, federalism and democracy.

It does so at a time when democratic politics appear to offer advocates of same-sex marriage opportunities not available to, say, opponents of segregation at the time of Brown. Indeed, the political momentum behind marriage equality is so strong that its ultimate victory seems, if not inevitable, then nearly so. Even in the South, support for gay marriage is 14 percentage points higher than it was a decade ago, according to Pew. Political reality, in this case, may counsel judicial restraint.

And Jonathan Rauch:

Here is a movie plot you have never seen and never will see: a disadvantaged athlete struggles against the odds, makes it to the Olympics by sheer force of grit and talent, and is ahead in the race for gold—when, with the finish line in sight, the referee calls off the competition, hands the hero a medal, and everybody goes home.

Gay Americans are in sight of winning marriage not merely as a gift of five referees but in public competition against the all the arguments and money our opponents can throw at us. A Supreme Court intervention now would deprive us of that victory. Our right to marry would never enjoy the deep legitimacy that only a popular mandate can bring.

So the real question here is not whether Jon Huntsman’s opinion matters to a justice, but whether any justices want to risk detonating a dirty bomb in a culture war that already seems to be going pretty well for one side.   

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New York State Fights the National Tide on Abortion

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by Publius
Posted February 27, 2013, 8:47 AM

According to the Christian Science Monitor:

Former Gov. George Pataki, the Roman Catholic Church, and now Fox News host Bill O’Reilly have joined a growing chorus of voices blasting New York Gov. Andrew Cuomo (D) for championing an abortion bill that would provide access to late-term abortions if a woman’s health is endangered or the fetus is not viable.

The latest opponent to join the ring, Mr. O’Reilly, called Governor Cuomo “barbaric” last Thursday on the Glenn Beck show and said he wants “to legalize late-term abortion for any reason ... a migraine headache, a hang nail, a panic attack.”

It’s no surprise the governor’s proposed Reproductive Health Act is gaining so much attention. The chorus of protests began after Cuomo outlined the proposed legislation in his January State of the State address, as part of a broader package of women's rights initiatives. One of the country’s most liberal pieces of abortion legislation, the bill goes against the national tide, attempting to relax abortion controls at a time when many other states are seeking restrictions.

Last year 19 states enacted 43 provisions restricting abortion access, according to the Guttmacher Institute, an abortion advocacy and research group. Not one measure was adopted to expand abortion access. In 2011, a record-breaking 92 abortion restrictions were enacted.

“Pretty much all of the energy, all of the momentum, has been to restrict abortion, which makes what could potentially happen in New York so interesting,” Elizabeth Nash of the Guttmacher Institute, told The New York Times. “There’s no other state that’s even contemplating this right now.”

Cuomo’s office has said his Reproductive Health Act is an effort to reinforce Roe v. Wade to protect the reproductive rights of women should the Supreme Court overturn the court’s landmark abortion ruling.

"The governor would simply realign our outdated state laws to federal law and existing state practice," said Cuomo’s counsel, Mylan Denerstein, in an Op-Ed. "The Supreme Court could always change and we want to protect a woman’s current right to choose."

Cuomo’s office has said the legislation would not expand state laws beyond federal standards. New York State’s existing law, which was passed in 1970, currently allows abortions after 24 weeks of pregnancy only if a woman’s life is at risk, while federal law allows late-term abortions to protect a woman’s health even if her life is not in danger.

The bill – one plank of a 10-part Women’s Equality Act that would also seek to install equal pay, anti-trafficking and anti-discrimination legislation would allow licensed health-care practitioners, not just physicians, to perform abortions. It would also remove abortion from the state’s penal law and enter it into public health law. . . .

Cuomo’s Republican predecessor, former Governor Pataki, also expressed disapproval, saying the proposal amounts to “partial birth abortion.” 

 

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High Court Rules that Lawyers, Journalists Have No Standing to Challenge Foreign Surveillance Law

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by Publius
Posted February 26, 2013, 6:44 PM

Lyle Denniston provides analysis of today's decision at SCOTUSblog:

Pushing a highly secret government program of global wiretapping a broad step away from ever having its constitutionality judged in an open court, the Supreme Court on Tuesday shut down a lawsuit by lawyers, journalists, and others who fear that their electronic exchanges with overseas contacts are being monitored by federal listeners.

The decision, in the case of Clapper v. Amnesty International USA (docket 11-1025), split the Court five to four, with the majority reaching back to a 1923 decision in a natural gas storage case to find a restrictive rule against allowing federal lawsuits to go forward.  That rule, the dissenting Justices complained, had never before been used by the Court to block a case on the theory that it did not present a live “case or controversy.”

The ruling marked the first time that the Court had encountered a five-year-old law in which Congress, reacting to government arguments that it needed added surveillance powers to pursue the “war on terrorism,” broadly expanded federal agencies’ authority to monitor telephone, e-mail, and other communications between the U.S. and other countries, using high-volume computer-driven techniques.

Because the Court ruled that the challengers to the 2008 law did not have “standing” under the Constitution’s Article III to file their case in regular civilian court, the decision did not judge the constitutionality of the sweeping new monitoring power.  The dissenters did not do so either, but they did argue that the challengers’ case should have been allowed to proceed in lower courts.

Justice Samuel A. Alito, Jr., who wrote the majority opinion, concluded that the challengers’ lawsuit was based upon a “chain of contingencies” that would have to fall into place before their communications might be at risk of eavesdropping.  They had not shown, the opinion concluded, that harms to them were “certainly impending” –  a rigorous standard for testing the right to sue.

The decision fit into two ongoing patterns established by the modern Court: a narrowing of the scope of the right to sue in federal court as a general proposition, and a stream of decisions insulating highly secret government war programs from judicial review in the regular federal court system.

The Alito opinion expressed a high degree of confidence that a special court, the Foreign Intelligence Surveillance Court, will guard against abuses of the new surveillance program that was freed of a number of restraints that existed under a law first passed in 1978.  That surveillance court operates in total secrecy, within the Justice Department building in downtown Washington, and almost never has turned down completely government requests for “foreign intelligence” surveillance.   It has sometimes modified those requests, however.

The Court majority said that the secret court is bound to enforce the Fourth Amendment’s guarantees of privacy, and indicated that the Supreme Court was relying upon it to do so.

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Prominent Republicans File Amicus Brief Supporting Challenge to Prop. 8

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by Publius
Posted February 26, 2013, 3:36 PM

The San Jose Mercury News reports:

Dozens of Republican conservative political leaders have signed on to a legal brief in the U.S. Supreme Court opposing California's ban on same-sex marriage, including Hewlett-Packard CEO Meg Whitman, who supported Proposition 8 during her unsuccessful 2010 run for governor.

The American Foundation for Equal Rights, which is leading the legal fight against Proposition 8, on Tuesday revealed the growing list of conservatives who are supporting the brief, which is expected to be filed in the Supreme Court on Thursday. The Supreme Court will hear arguments in the Proposition 8 challenge on March 26 and consider the legality of the federal ban on same-sex marriage benefits the following day.

The friend-of-the-court brief will be filed on behalf of two same-sex couples who have challenged California's 2008 voter-approved ban on gay marriage. The Supreme Court is reviewing an appeals court's decision last year finding the law unconstitutional.

Among the Republicans signing onto the brief are Ken Mehlman, former chairman of the Republican National Committee who revealed in 2010 he is gay; former California congresswoman Mary Bono Mack; Stephen Hadley, National Security adviser during the Bush administration; Republican presidential candidate and former Utah Gov. Jon Huntsman; former Massachusetts Gov. William Weld and former New Jersey Gov. Christine Todd Whitman, head of the EPA during the Bush administration.

The Republican backing may have some connection to Theodore Olson, one of the lead attorneys for same-sex couples and former U.S. solicitor general during the Bush administration. Olson, considered one of the most influential conservative lawyers in the country, has been an outspoken supporter of gay marriage rights since taking on the Proposition 8 case in 2009.

All groups supporting the challenge to Proposition 8 are due to file their legal briefs on Thursday. The Obama administration is weighing whether to take a position by that deadline.

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Can an “American Thomism” Reclaim Equality Over Egalitarianism?

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by Publius
Posted February 26, 2013, 12:37 PM

Richard Reinsch-- a fellow at Liberty Fund,  editor of the Library of Law and Liberty, and author of Whittaker Chambers: The Spirit of a Counterrevolutionary--comments at the Library:

How can reasonable men and women reclaim equality over and above egalitarianism? The first principled step is to get right with our compromised Declaration of Independence. This Declaration both affirms equality in self-government and reconciles our deeply contrasting Lockeanism and Calvinist Christianity as the basis of our liberty. This is an American Thomism of sorts, a reconciliation of seemingly opposed principles on the head of deliberative republicanism. It’s probably our best hope.

We should, however, look even deeper into our compromising. In doing so, we can recover John Courtney Murray’s notion that “Civilization is formed by men locked together in argument.” I offer Murray’s account to underscore his American Proposition. Its components are human dignity, constitutionalism, government limited by law as given to America by the common law tradition, self-government as faith in citizens to exercise the duties of moral judgment in basic political decisions, and the constitutional consensus that forms the Proposition and serves as the basis for rational argument and the compromises that it forges. This is the deep background that enables “the deliberate sense of the community” effectuated by our republican institutions to be reasonable.

Stressed by Murray is “the specifying note of political association” which differs from associations like the employer-employee relationship, voluntary associations, or married family life where “the forces of life itself” define the association more than reason. Rather, the essence of the political association “is its rational deliberative quality, its dependence for its permanent cohesiveness on argument among men.” Murray’s position does not ignore the less than rational aspects that compose civilization. The “formative soil of history” and a society’s loyalties that are not necessarily logical, its “legends that go beyond the facts,” and, as such, are “vehicles of truth,” nor its “materialisms of property and interest,” all of these, Murray notes, are components of the political order. However, the form of the “civil multitude” its “distinctive bond” is in reason, “or more exactly, that exercise of reason which is argument.”

We might ask, though, argument about what exactly? Murray’s answer is threefold. First, citizens argue about those matters which are for the public advantage and require public decision and governmental action. Second, argument must also be about public affairs that fall in “decisive part” outside the scope of limited government. However, the effect of these affairs is that they come to shape the public order in a more foundational sense. Thus, the quintessential example for Murray is education in the primary school system and in higher education. Contained in Murray’s example is the notion that the contents of a political society’s various educations are part of its broader social and political goals and are a crucial means for realizing them.

The third element is the constitutional consensus whereby a people obtains its identity and self-knowledge and thus understands its purpose in history. The consensus is constitutional in that “its focus is the idea of law” that the people arrive at deliberatively by “reason reflecting on experience” and become a people in the process of coming to it. The consensus is “a structure of basic knowledge, an order of elementary affirmations that reflect realities inherent in the order of existence. It occupies an established position in society and excludes opinions alien or contrary to itself.”[iii] Because of the constitutional consensus, Murray argues, America is not bereft of self understanding and self confidence, doomed to stumble madly around the world. The consensus is the premise “of the people’s action in history” that gives content to the “larger aims” of that action in domestic and foreign affairs.

The larger wisdom of Murray’s consensus is its challenge to the notion that agreement ends rational argument. Murray’s position is that the only disagreement worthwhile to political order is that which becomes possible because of prior agreement about the abiding consensus. Public argument, actually, is impossible without the consensus. If everything is an open question, if everything is in doubt for a political society, public argument cannot even begin, it is not possible. In that sense, rational dialogue is displaced in favor of the nominalist’s contention that words are weapons used to clear space and create power and extract benefits for the individual or the group.

How far can Murray take us with his account of men locked in rational, political argument as the formal principle of American political foundations? In an essay evaluating this question, “The True Sage of Woodstock,” Willmoore Kendall asserted that Murray’s account, even if questionable as to the actual origins of civil communities, perfectly accords with the “origins and original character of . . . American political society.” Was, Kendall asks, “American society formed by “men locked in argument”? Answer: One could not imagine a better description of the Congress that produced the Declaration of Independence, the Convention that produced the Constitution, the state conventions that ratified it, and the First Congress that produced our Bill of Rights.”

Kendall also demonstrates other aspects of the Murray thesis that were realized at various points in these debates, arguments, and compromises of the Founding documents. “Cohesiveness” he argues was achieved as these were arguments that “got somewhere” and resolved disagreements. The record of the Philadelphia Convention demonstrates Kendall’s point well as framework plans for political order were presented, critiqued, compromised and synthesized by the delegates. On the purely rational character of the delegates’ arguments, Kendall answers in the negative, but Murray never claimed for political argument that it be purely rational. Kendall observes that loyalties, self-interest, passion and prejudice, and legends were operative in the Philadelphia Convention as should be expected. However, these non-rational aspects “were subordinated to a “distinctive bond” recognizably that of “the exercise of reason” which tied the delegates together.” . . .

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AEI Fellow Edward Blum Beats Odds in Getting Cases to the Supreme Court

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by Publius
Posted February 26, 2013, 9:26 AM

The Washington Post reports:

The odds are daunting: Last term, 8,952 cases were filed at the Supreme Court. The justices agreed to schedule a mere 79 for oral argument.

That’s a 0.88 chance of having your case reviewed. Getting two to the high court is less likely than averaging a triple-double for an entire season in the NBA.

So how did Edward Blum do it? How did he guide not one — but two — cases to the Supreme Court in one term?

Blum is a 61-year-old former stockbroker with a gentle demeanor and a waify runner’s build. He fashions himself a Supreme Court matchmaker — hooking up worthy plaintiffs with top-notch lawyers. He also thinks government should never allow race to be a factor in its decisions. Liberals have labeled him the Republican who could gut affirmative action and key voting rights protections for minorities. Conservatives laud him as a starting player in their effort to end racial preferences.

On Feb. 27, the Supreme Court will hear arguments in Shelby County v. Holder , which challenges a pivotal section of the 1965 Voting Rights Act. Earlier in the term, the court heard arguments in Fisher v. Texas , a case in which a white student is challenging race-based admission policies at the University of Texas. The justices are expected to hand down decisions in both cases this spring.

Both could upend decades of civil rights law. Both were ushered along by Blum.

As director of the Project on Fair Representation and the project’s sole employee, Blum largely works alone. He found the plaintiffs after years of hunting and paired them with attorneys at Wiley Rein, a powerhouse Washington law firm. Blum’s legal defense fund pays the attorneys’ fees. Although Blum’s legal defense fund holds only $15,000, Blum says it has paid millions over the years to bankroll litigation.

“I’m just a regular guy,” he said quietly in a recent interview. A regular guy whose search for cases at the intersection of race, public policy and law has spanned 20 years.

“It’s not even a close call to say that he is dead wrong in his positions,” said Gary Bledsoe, a civil rights attorney and president of the Texas NAACP, which has tangled with Blum through the years.

Blum will say only that it’s the civil rights groups that have gone astray.

“The civil rights movement had it right from the very beginning — abandon the use of race,” Blum said.

To that end, he has developed a keen eye for plaintiffs with the story, demeanor and will to mount constitutional challenges to laws that show preference to minorities.

“Challenging race-based policies requires a very delicate touch and requires someone of a good heart . . . to understand that there is another side of the argument,” Blum said, describing how he looks for plaintiffs, “and to be sympathetic to that.”

Translation: Bigots, showboats and embittered activists need not apply — a sentiment Blum has put to work in more than one instance. . . .

 

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DOJ Won’t Disclose Number of Classified OLC Opinions Under Obama

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by
Posted February 25, 2013, 5:58 PM

According to the Huffington Post:

Just how many classified opinions has the Justice Department's Office of Legal Counsel issued since President Barack Obama took office four years ago? The department won't say.

Back in December, before disclosure of a Justice Department "white paper" on the legal justification for targeted killings set off a drumbeat of calls for the Obama administration to provide Congress with all OLC memos on the drone strike program, this reporter asked the Office of Legal Counsel for a list of every opinion it had issued during the Obama years.

In response to the Freedom of Information Act request, the OLC sent a letter dated Feb. 20 and enclosed five mostly redacted lists from 2009, 2010, 2011, 2012 and the first month-and-a-half of 2013.

What's more interesting is what wasn't included: The office stated that it was withholding, in full, 11 lists of classified OLC opinions. Because the length of each list is unknown, it's unclear how many classified opinions the OLC has issued during the Obama administration.

Sen. Dianne Feinstein (D-Calif.) has indicated that there are 11 OLC memos specifically related to the Obama administration's targeted killing program and that members of Congress have seen only four.

On the unclassified side, the OLC issued 28 legal memos in 2009, 19 in 2010, 12 in 2011, 16 in 2012 and one so far in 2013, for a total of 76 unclassified opinions.

The titles of many OLC opinions were fully redacted in the lists provided, with a Justice Department official writing that the titles were "protected by the deliberative process, attorney-client, and/or attorney work-product privileges." The names of the lawyers who wrote a number of opinions -- including the memo on the president's use of recess appointments during the Senate's pro forma sessions -- were also blacked out because their disclosure would "constitute a clearly unwarranted invasion of personal privacy," the official wrote. . . .

 

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D.C. Circuit Appears Skeptical of FCC in Tennis Channel Case

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by Publius
Posted February 25, 2013, 4:42 PM

BLT: The Blog of Legal Times reports:

A federal appeals court in Washington today appeared poised to strike down a Federal Communications Commission decision that found the country's largest cable television provider discriminated against the Tennis Channel by restricting its distribution to a sports package.

A lawyer for the commission, Peter Karanjia, faced tough questions from a panel of the U.S. Court of Appeals for the D.C. Circuit, where Comcast Cable Communications LLC is fighting the FCC order. The agency ruling was the first-ever in two decades under a provision of federal communications law that Congress enacted to promote competition and diversity in cable television programming.

Judges on the D.C. Circuit panel expressed concern about whether the Tennis Channel's complaint is time-barred and whether the agency order could expand the power of the government to regulate the speech of other entities. One judge, Brett Kavanaugh, said the FCC "has a serious problem with the First Amendment here."

The appeals court didn't immediately rule in the closely watched case. Bloomberg L.P. filed papers in support of the FCC. On the other side, the National Cable & Telecommunications Association wants the FCC order vacated. A team from Gibson, Dunn & Crutcher represents Comcast.

The FCC order, issued by a divided commission in 2012, said Comcast must provide equal treatment to the Tennis Channel as the cable provider gives to two affiliated sports networks, the Golf Channel and Versus, which is now NBC Sports. The FCC also fined Comcast $375,000.

The Tennis Channel, represented by Covington & Burling in the appeal, has no ownership affiliation with Comcast. The cable provider contends its distribution decision stems from a cost-benefit assessment. Karanjia of the FCC noted in court that the commission decision requires the same level of distribution for the three networks but Comcast has full discretion to determine how it chooses to carry those channels.

Senior Judge Harry Edwards of the D.C. Circuit appeared ready to strike the FCC order on the ground that the Tennis Channel discrimination complaint was filed outside the one-year FCC window in which to challenge carriage. Edwards based his view on language in an agency rule in 1994.

Edwards questioned whether the fight in the appeals court is "entirely unnecessary." Comcast and the Tennis Channel entered a carriage contract in 2005. FCC lawyers said in court papers that the limiting language was deleted from the rule 18 years ago.

"You just glibly say, oh, that's a thing that happened 18 years ago," Edwards said, addressing Karanjia, deputy general counsel at the FCC. "The thing 18 years ago is still in play." Edward said later that "the contract becomes silly; it has no meaning" if networks can bring stale claims at any point circumstances change.

 

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Judge Harvie Wilkinson Reviews Robert Bork’s Final Book

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by Publius
Posted February 25, 2013, 1:00 PM

The Honorable J. Harvie Wilkinson III for the Fourth Circuit reviews Judge Robert H. Bork's final book, Saving Justice: Watergate, the Saturday Night Massacre, and Other Adventures of a Solicitor General, in the Weekly Standard:

The death of Robert Bork this past December brought forth tributes to a man bearing no resemblance to the grotesque caricatures that emerged during the long debate over his 1987 nomination to the Supreme Court. Widely noted were his unswerving loyalty to friends and principles, his seminal intellect, his acerbic but not unkind humor and wit, and his lifelong sense of service and duty to his country.

Yet his life will never be free from the controversy that trails those who actually have something to say. The dust jacket of this book, a memoir of his service in the Nixon administration, shows a young Bork with cigarette in hand and his trademark red beard. Had he stopped smoking and started shaving, some things might have turned out better for him; but then again, that wouldn’t have been Bob. His willingness to buck convention was his strength. He lived life on his terms.

The enigma that was Richard Nixon will always tantalize historians. Bork’s view of him is largely respectful, but also clear-eyed. Nixon possessed the gift of high intelligence, and was capable of penetrating strategic insights, especially in foreign affairs. He was also insecure and paranoid. The tragedy of it all was that these latter traits seeped down into his administration, with well-known consequences.

Bork recounts meeting with his friend, Yale law professor Alexander Bickel, to mull over an offer from the White House that Bork resign his position as solicitor general and take charge of Nixon’s Watergate defense. He and his wife Claire “collected Bickel and turned around to head home.”

When we reached our street, Turkey Run Road, I suggested that Claire stop the car so Bickel and I could get out and walk the dark, semi-rural road home. It’s an indication of the paranoia of the time that I really wanted to be someplace where it was impossible to be overheard.

On another occasion, Bork and Attorney General Elliot Richardson visit the White House to discuss the timing of indictments against Vice President Spiro Agnew for taking bribes. The two duck into the bathroom on the way to the Oval Office, and “as soon as the door to the men’s room closed behind us, Richardson turned on all the faucets in the expectation that the noise of running water would make our conversation inaudible if anybody was eavesdropping electronically.”

Good grief! Granted that Washington is a city of schemers, how is government to function at this level of mistrust? The idea that such precautions may have actually been necessary is all the more unsettling. The entire “atmosphere and the level of distrust” in the Nixon White House had, in Bork’s view, “an air of low comedy about it.” Bork served both Nixon and Gerald Ford as solicitor general, an office within the Department of Justice which possesses both high prestige and a dual personality. The solicitor general’s chief, though not sole, duty is to represent the government before the U.S. Supreme Court. Both the solicitor general and his principal deputy are political appointees, and the office thus naturally reflects an administration’s priorities. But if the office becomes too closely entwined with the president’s political agenda, it forfeits its claim to neutrality under law and its very credibility before the Court.

Bork was not, by nature, a political animal. He had a high opinion of democracy as a system but a rather low opinion of politicians as a breed—an attitude that unfortunately was not sufficiently disguised in his Senate confirmation hearings. Bork spent much of his life trying to separate law from the corrupting influences of politics. When he became solicitor general in June 1973, he understandably anticipated a job that would be any great lawyer’s dream.

The irony was that events thrust this politically pristine soul into the most politicized environment a solicitor general had ever experienced. As Bork puts it, he had to

respond to Supreme Court Justice William O. Douglas’s order that our military stop bombing in Cambodia, file briefings for the prosecution of Vice President Spiro T. Agnew for taking bribes while governor of Maryland, discharge Archibald Cox as special prosecutor in the Watergate affair, and secure the continuity of the Watergate investigation until we found a replacement for Cox. Thankfully, I was spared from dealing with the Yom Kippur War in the Middle East, which occupied others in the administration at the time. . . .

That the ostensibly apolitical Bork survived the political turbulence of Nixon’s last months and days was no mean accomplishment. He did so because he had the good sense to avoid compromising situations, and because he sized up people well. . . .

For the Federalist Society's tribute to Bork upon his death, see here.

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Alabama High Court Ruling on Generic Drugs Sparks Backlash

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by Publius
Posted February 25, 2013, 8:04 AM

The Wall Street Journal reports:

Business groups are urging Alabama's highest court to reconsider its recent ruling that name-brand drug makers can be held liable for injuries caused by the generic versions of their products.

The decision in January cleared the way for a 2010 lawsuit against Pfizer Inc. over the generic version of an acid-reflux drug called Reglan developed by a different company decades ago. The U.S. Chamber of Commerce, the pharmaceutical industry's trade group and other business groups fear the theory of liability, rejected by dozens of other courts, could open the door to a flood of lawsuits seeking to hold companies liable for products they didn't make.

Hundreds of Reglan cases are pending throughout the country, ballooning to 3,500 from 250 last year, according to court documents. There are at least 250 plaintiffs in Alabama.

Pfizer's lawyers asked the Alabama Supreme Court to reconsider the decision. If left to stand, Alabama's decision would allow generic-drug makers "to reap the profits of drug sales while leaving brand manufacturers with the liability" and violate the basic legal tenet that a manufacturer is liable only for its products, said Kevin Newsom, a Birmingham lawyer who is representing Pfizer.

In a court brief, Pfizer also jabbed at Alabama's history as a plaintiff-friendly venue, saying the ruling would once again make the state a "magnet for novel personal-injury lawsuits."

Mit Spears, general counsel of the Pharmaceutical Research and Manufacturers of America, expressed concern that brand-name drug makers might decide to withdraw their products once generic versions dominate sales because the companies would otherwise be wholly responsible for monitoring and ensuring the safety of drugs made by generic companies. "By essentially absolving [generic-drug makers] of any responsibility, you're saying they don't have to perform that job very carefully," and remove an important incentive for protecting patients, Mr. Spears said.

The Chamber of Commerce warned in a separate court brief last week that the ruling "eviscerates basic tort limitations" and "threatens to unleash the plaintiffs' bar on all manufacturers doing business in Alabama." Similar sentiments were expressed by the Alabama Policy Institute, a free-market think tank, and the Business Council of Alabama.

Pfizer could still appeal to the U.S. Supreme Court, which is already considering a case this term involving drug-maker liability.

The case at issue in the Alabama ruling involves Danny Weeks of New Brockton, Ala., who says he developed tardive dyskinesia, a disorder characterized by involuntary movements, after taking the generic version of Reglan. Mr. Weeks took the drug from 2007 to 2009, the year the U.S. Food and Drug Administration required all manufacturers to augment their warning labels to explain the link between the disorder and long-term use of the drug.

Mr. Weeks and his wife, Vicki, accused the generic manufacturers of the drug, Teva Pharmaceuticals USA and Actavis Elizabeth LLC, of failing to adequately warn of the risks. They also sued Pfizer, which acquired brand-name Reglan's maker Wyeth in 2009, and Schwarz Pharma Inc., which bought the rights to Reglan in 2001. . . .

 

 

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