FedSoc Blog

Sam Alito: A Civil Man


by Publius
Posted April 24, 2014, 10:41 AM

The feature story in the May 2014 issue of American Spectator begins:

Samuel Alito is wearing a numberless Philadelphia Phillies uniform, standing next to Phillies legend Richie Ashburn, the hittingest batter of the ’50s and a childhood hero of his. He looks happy.

“Back when I was on the Court of Appeals, when I was forty-three, my wife signed me up for Phillies Phantasy Camp,” he tells me. “I never would have done it, but it was a Christmas present.” Phantasy Camp is the aging baseball junkie’s nirvana. For a week, campers train with athletic professionals, drill with former players, square off against one another, and, on the last day, play a game—with real MLB rules—against Philly old timers. Alito, a Little League veteran who has coached his son’s baseball team, says he loved it. Before I can think of a tactful way to broach the subject, Alito begins telling me what it’s like to live with a bunch of white-collar middle-aged guys pretending to be professional athletes. “By the end of the week everybody had pulled their hamstrings,” he says. “The locker room smelled overwhelmingly of Bengay. Nobody could run. Everybody was hobbling.” 

I ask him how the final game against the old timers went. “I was up to bat against a pitcher named Al Holland. I’m sure he was trying to take it easy, but when he threw the first pitch I didn’t even see it. ‘This is going to be embarrassing,’ I thought. All I wanted to do was put the ball in play, so I started to swing before he even released the pitch. I managed to get a ground ball. It was a moral victory.”

He laughs and places the photograph back on a shelf stuffed with championship hats, team towels, ticket stubs, and newspapers whose headlines announce big Phillies wins. “My wife threw this stuff out of the house,” he says. “It landed here.” 

When I sat down with Alito in his Supreme Court chambers back in March, I worried for a moment that we might spend the entire afternoon talking about baseball. Alito and the game go back a long way, much further than Alito and the law, to his childhood in Hamilton Township, New Jersey, a suburb of Trenton. “We’d go to doubleheaders on Sundays at Connie Mack Stadium,” he says. “We would sit along the right-field line. The tickets were a dollar and a half, so for the four of us, my parents, my sister, and me, it was six bucks.” In 1972 when he cheekily declared his ambition to “warm a seat on the Supreme Court” in his Princeton yearbook, he was secretly nursing a fantasy of becoming commissioner of baseball, also a onetime wish of President George W. Bush.

Alito was born in Trenton in 1950 to Samuel Alito, Sr. . . .

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Executive Power on Steroids?


by Publius
Posted April 23, 2014, 3:16 PM

William Suter comments in the Hoover Institution's Defining Ideas:

Much has been made recently about the Obama administration’s aggressive and excessive use of executive power. Examples include making recess appointments when the Senate was not in recess and repeatedly changing significant parts of the Patient Protection and Affordable Care Act (Obamacare) without express legislative authority. Similar excessive executive authority has been used in executing laws pertaining to entitlements and immigration.

he administration also exerts its strong-arm on a more local level, as evidenced by several recent U. S. Supreme Court cases. In those cases, which have received very little attention, the Obama administration took a crabbed view of an individual’s fundamental rights. It is one thing to be a liberal or a progressive administration; it is quite another to be hostile to fundamental individual rights. The cases described in this essay reflect an administration that is antagonistic to fundamental rights guaranteed in the Constitution. 

Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission (2012)

Cheryl Perich was a teacher at the Hosanna-Tabor Evangelical Lutheran Church, a small religious school in Michigan. She had undergone religious training and was certified to teach religious courses and lead religious services at the school. She also taught secular subjects. Her religious work took up only about forty-five minutes of her day.

In 2004, Perich became ill with narcolepsy and could not start the school year, but the school continued paying her for seven months. She subsequently attempted to return to work, but the church had already hired a replacement and, because of Perich’s behavior, the school principal did not think she was ready to resume teaching. She was disruptive and threatened a lawsuit, which violated written Lutheran Church doctrine. The congregation conducted a thorough due process hearing, rescinded Perich’s “call,” and terminated her employment. The termination decision was based on doctrine; it had nothing to do with disability.

Thereafter, Perich filed an Equal Employment Opportunity Commission (EEOC) complaint, claiming discrimination under the Americans with Disabilities Act. The EEOC ultimately filed suit against the church. The U.S. District Court ruled for the church based on the “ministerial exception” doctrine. The Sixth Circuit Court of Appeals reversed, holding that Perich did not qualify as a minister under the ministerial exception.

The question presented when the Supreme Court considered the case was whether the ministerial exception doctrine applies to a teacher who teaches secular subjects and also teaches religious courses, leads students in prayer, and is a commissioned minister. The ministerial exception is a long-standing legal principle providing that ministers cannot sue a church over employment issues. For example, it would violate the religion clauses of the First Amendment for courts to compel the ordination of women by the Catholic Church.

The Solicitor General, representing the EEOC, claimed there is no such thing as a ministerial exception. This was a startling position to take, inasmuch as all federal circuit courts that had considered the matter recognized the ministerial exception as a legitimate doctrine.

In a unanimous decision, the Supreme Court held that Perich was a minister under the ministerial exception. It further held that the Establishment Clause and the Free Exercise Clause of the First Amendment (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”) barred suits brought on behalf of ministers against their churches claiming termination in violation of employment discrimination laws.

Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such a decision interferes with the internal governance of the church. By imposing an unwanted minister, the state infringes the Free Exercise Clause. Furthermore, giving the state the power to determine who will minister to the congregation also violates the Establishment Clause, which prohibits government involvement in such religious decisions.

The Supreme Court sent a strong message to the Obama administration that the Constitution prevents the government from interfering with a church’s ability to select its own ministers. . . .


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California Affirmative Action Bill Sparks Pushback From Asian-Americans


by Publius
Posted April 23, 2014, 1:48 PM

The AP reports:

Nearly 20 years after California became the first state to ban the use of race and ethnicity in college admissions, a proposal to reinstate affirmative action has sparked a backlash that is forging a new divide in the state's powerful Democratic Party and creating opportunity for conservatives.

The debate is unfolding in the nation's most populous and most ethnically diverse state as an unrelated U.S. Supreme Court ruling upholds voters' rights to decide whether racial considerations should factor into university selections.

The California proposal would allow voters to rescind their state's affirmative action ban, but unexpected pushback from families of Asian descent who mobilized through Chinese-language media, staged rallies and organized letter-writing campaigns has all but killed the measure this year.

"I was surprised," said Sen. Ed Hernandez, D-Covina, the author of the bill. "I didn't expect it."

Asian-American students are enrolled at many of California's top schools in numbers far greater than their proportion of the state's population. Critics of Hernandez's plan worry that qualified students would be dismissed simply because of their ethnicity.

The ensuing debate has reopened an old fissure over the role of race in college admissions, divided Democrats along racial lines and created an opportunity for the California GOP.

California voters were the first in the nation to ban the use of affirmative action in university admissions in 1996. Hernandez's proposal was his fourth attempt to undo that action, which he says harms black and Latino students.

A similar voter-approved ban in Michigan was upheld by the nation's highest court Tuesday, but that ruling is not expected to change the discussion in California, where the prohibition is likely to remain in place independent of the court decision.

Hernandez's proposal sailed through the state Senate in January on a Democratic Party-line vote. Legislative leaders, however, pulled the bill before it could be debated in the Assembly after the harsh reaction.

The controversy highlights the complexity of racial politics in California, where the public school system has struggled for decades to improve achievement. Critics of the affirmative action ban say it's part of a school system that fails black and Latino students.

Blacks and Latinos are more likely to attend the state's lowest-performing schools than their white or Asian counterparts, affecting their ability to be accepted into four-year universities, where they are underrepresented.

Rather than debate Hernandez's proposal, lawmakers now plan to hold hearings about affirmative action and other aspects of campus equality.

The state's governing party has split along racial lines. Three Asian-American senators, all Democrats who were seeking higher office at the time, withdrew their support of the bill after being bombarded by public criticism.

Six black and Latino lawmakers have since withdrawn their endorsements of Sen. Ted Lieu, who is Chinese-American, in a Los Angeles-area congressional race where he faces another Democrat in the primary. And some black and Latino Assembly members this month withheld votes from unrelated legislation about the state's carpool program by Assemblyman Al Muratsutchi, D-Torrance, who is Japanese-American.

The Senate's Democratic leader, President Pro Tem Darrell Steinberg, acknowledged the animosity. He said in a statement that he wanted "a serious and sober examination" of affirmative action, adding "I am deeply concerned anytime one ethnic group turns on another."

In recent statistics, the University of California system said 36 percent of its in-state freshman admissions offers for fall 2014 are to Asian-American students, 29 percent are for Latino students, 27 percent are for white students and 4 percent of offers are to black students.

At some campuses, including UC San Diego and UC Irvine, Asian-American students accounted for more than 45 percent of admitted freshmen last year. . . .

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Atheists’ New Plan of Attack Against Pledge of Allegiance: State Courts


by Publius
Posted April 23, 2014, 9:57 AM

According to the Christian Science Monitor:

For the second time in a year, American atheists and humanists are asking a state court to remove the phrase “under God” from the Pledge of Allegiance, saying daily requirements to recite the phrase in public schools discriminates against atheist children.

Last month, a nonbelieving New Jersey family sued its local school district in state court, claiming the daily classroom exercise violates the equal protection guarantees of the New Jersey constitution, the American Humanist Association announced on Monday. The group has joined the family as plaintiffs in the case.

Last fall, the Massachusetts Supreme Court heard similar arguments from the humanist association, which represents another nonbelieving family that claims laws requiring their children to recite “under God” discriminate against their beliefs.

This new focus on state laws and state constitutions represents a change in tactics for American atheists, who have traditionally sued in federal courts, mostly arguing that the First Amendment of the US Constitution forbids religious expressions in civic spaces.

In the Massachusetts and New Jersey cases, however, atheists are claiming minority status and basing their arguments on guarantees of equal protection under the law.

“This approach, thinking of atheists as decent Americans who should not be discriminated against, is quite frankly long overdue,” says David Niose, legal director at the American Humanist Association. “It's almost as if the Establishment Clause has distracted from the fact that this is a minority group that deserves to be treated with respect.”

Indeed, atheists, who make up about 3 percent of the population, continue to be one of the least respected groups in the country, according to a number of polls over the years. A 2006 study at the University of Minnesota found that Americans rank atheists below Muslims and recent immigrants as “sharing their vision of American society.” A 2012 Gallup poll found that only half of Americans would consider voting for an atheist.

But while federal courts and First Amendment claims have mostly proven fruitless, many atheists and humanists hope state courts – especially in so-called blue states – will be more open to their claims.

“The states have different standards with regard to equality, as well as a lot of other different constitutional rights,” says Mr. Niose. “So if you're an atheist who happens to feel that you're being discriminated against, it only makes sense to consider all of the alternatives.”

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Second Circuits Considers What Defines Insider Trading


by Publius
Posted April 22, 2014, 5:00 PM

Christopher M. Matthews reports for WSJ's Law Blog:

A panel of federal appeals-court judges signaled that prosecutors may have taken too broad a view of insider trading, saying there needs to be more a “bright line” for Wall Street about what constitutes a crime.

The comments came Tuesday during arguments of an appeal brought by two former hedge-fund managers that could threaten some of the convictions won by prosecutors in their yearslong crackdown on insider trading.

At issue is whether a trader, to be guilty of insider trading, must have known a tip had been illegally disclosed in exchange for a reward.

Prosecutors have argued they need only show that people who used insider information knew it had been disclosed in breach of a fiduciary duty.

Two members of the three-judge panel of the U.S. Court of Appeals for the Second Circuit in Manhattan expressed concern that prosecutors’ approach is too vague.

“We sit in the financial capital of the world, and the amorphous theory you have gives precious little guidance to all these financial institutions and all these hedge funds out there about a bright-line theory as to what they can and cannot do,” Judge Barrington Parker said.

The appeal is being pursued by Todd Newman and Anthony Chiasson, two portfolio managers convicted in 2012 of participating in a $72 million insider-trading scheme. The two men, free on bail pending the appeal, are seeking to have their convictions overturned.

The original trial judge told jurors that Messrs. Chiasson and Newman could be convicted of insider trading if they knew there had been a breach of duty, but didn’t instruct them that the defendants had to have known that the person who leaked the information had done so in return for a “personal benefit.”

Lawyers for Messrs. Newman and Chiasson said Tuesday that prosecutors must show their clients knew the tippers were somehow compensated for the tips. Therefore, they said, the judge’s instruction was erroneous.

The tips in question made their way through a network of analysts before reaching analysts who worked for Messrs. Chiasson and Newman, the lawyers said. Their clients didn’t seek out or knowingly use inside information, they said.

Assistant U.S. Attorney Antonia Apps said Tuesday that even if the judge’s instruction was erroneous—and she didn’t believe it was—the jury would have concluded the two men inferred the information was given in exchange for a reward.

She said the “bright line” on what constitutes insider trading has been clear for decades.

If the court sides with Mr. Chiasson, who founded Level Global Investors, and Mr. Newman, once a Diamondback Capital portfolio manager, the two will either be granted a new trial or a judgment of acquittal. The appeals panel didn’t issue a decision Tuesday.

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Asian-Americans, Affirmative Action, and the “Political Restructuring” Doctrine


by Publius
Posted April 22, 2014, 4:43 PM

Ilya Somin comments at the Volokh Conspiracy:

Today’s Supreme Court decision upholding Michigan’s state constitutional amendment banning racial preferences in state university admissions turned on the “political restructuring” doctrine, which holds that shifting a decision on a public policy issue from one level or branch of government to another is sometimes unconstitutional if it disadvantages minorities. As Justice Sonia Sotomayor put it in her dissenting opinion, the doctrine applies in cases where the state “reconfigur[es] the existing political process… in a manner that burdened racial minorities.” In the 1982 Seattle case, the Court explained that the doctrine forbids “a political structure that treats all individuals as equals, yet more subtly distorts governmental processes in such a way as to place special burdens on the ability of minority groups to achieve beneficial legislation.” Sotomayor argues that the amendment should have been invalidated because, by adopting a state-wide ban on racial preferences by referendum, the voters shifted the decision on affirmative action policies from university administrators and thereby disadvantaged minorities in the political process.

But, in reality, banning racial preferences in admissions affects different minorities in different ways. It may well burden African-Americans, Hispanics, and other groups favored by affirmative policies currently practiced in universities (though the literature on educational mismatch suggests that the benefits are not unambiguous). But current affirmative action policies also often harm those minority groups that score well on conventional academic admissions standards, most notably Asian-Americans. Thus, it cannot be said that the Michigan amendment is a straightforward case of burdening racial minorities while benefiting the majority. In reality, the policy affects different minority groups in different ways.

What is true of affirmative action in college admissions is also likely true in many other potential political restructuring cases. In an increasingly diverse America, there are many different minority groups with a variety of differing interests. On most issues, therefore, there are likely to be minorities on both sides. There are even significant divergences between subgroups within minorities. For example, Cuban-American Hispanics have very different political views from Mexican-Americans and Puerto Ricans. Russian Jewish immigrants, on average, have different views from those of native-born American Jews. And there are many other such cases.

The fact that some other minority group might incidentally benefit should not prevent courts from striking down political restructuring in cases where the evidence shows that the change was adopted for the specific purpose of disadvantaging a particular racial or ethnic group (e.g. – a policy deliberately intended to reduce the power of the black vote). Indeed, such deliberate discrimination is already forbidden by other Supreme Court precedents. But as several justices emphasized in their opinions today, the political restructuring doctrine applies in cases where there is no such invidious intent. In such cases, there is no clear way to determine whether a restructuring that affects some minorities in different ways from others is an impermissible burden on minorities in general or not.

In my view, this conceptual problem strengthens the case for getting rid of the political restructuring doctrine altogether, as advocated by Justice Scalia in his concurring opinion. It underscores the doctrine’s incoherent and often arbitrary nature. But those who want to preserve the restructuring precedents need to address the issue of how to apply them in cases where there are minority interests on both sides. Today more than ever, such cases are likely to be the rule rather than the exception.

UPDATE: It’s interesting to note that Asian-Americans are not mention even once in any of the five opinions in today’s ruling (which include over 100 pages of combined text).


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New Post-Decision SCOTUScast: Walden v. Fiore


by SCOTUScaster
Posted April 22, 2014, 11:00 AM

On February 25, 2014, the Supreme Court issued its decision in in Walden v. Fiore. This case involved a dispute over personal jurisdiction. For a court to validly adjudicate a dispute, it must possess jurisdiction over the parties before it. Here the question was whether due process permited a federal court in Nevada to exercise personal jurisdiction over a law enforcement defendant in Atlanta, Georgia regarding an allegedly improper seizure of the plaintiffs’ gambling winnings that took place in transit at Atlanta’s airport. In addition, there was a question of whether Nevada was a proper venue to adjudicate the parties’ dispute under the terms of an applicable federal statute.

In a unanimous decision delivered by Justice Thomas, the Court held that the United States District Court for the District of Nevada lacked personal jurisdiction over the petitioner. Given the lack of jurisdiction, the Court did not reach the venue issue. The decision of the Ninth Circuit was reversed.

To discuss the case, we have Paul Stancil, who is a Professor of Law at the University of Illinois College of Law.

Click here to view this article on the source site »

Categories: SCOTUScasts

Supreme Court Voices Resistance to Argentina Blocking Creditor’s Access to Asset Records


by Publius
Posted April 22, 2014, 8:01 AM

The Wall Street Journal reports:

The U.S. Supreme Court on Monday took up a case connected to Argentina's historic default in 2001, voicing resistance to the country's request to block a holdout creditor from obtaining bank records about Argentina's international assets.

The high court, however, expressed some dissatisfaction with both sides in the case. The justices during an hourlong oral argument also raised concerns that subpoenas for banking information from holdout creditor NML Capital Ltd., a unit of Elliott Management Corp., were too broad and potentially intruded on Argentina's sovereignty.

The court's questions and comments suggested the justices were contemplating a middle-ground ruling that would allow NML some leeway to obtain bank records on the country's assets, but perhaps not as much information as the creditor would like.

NML is among a group of creditors that opted against participating in Argentina's debt restructurings. It is seeking to collect on more than $1.6 billion in legal judgments it has won against Argentina, which the country has refused to pay.

NML served subpoenas on Bank of America Corp. and Banco de la Nación Argentina, seeking records on bank accounts maintained by Argentina. NML said it wants the records to learn how Argentina moves its assets around the world and to identify places where it could seek to collect on its judgments.

On Monday, Argentina's lawyer, Jonathan Blackman of Cleary Gottlieb Steen & Hamilton LLP, urged the Supreme Court to overturn a lower-court ruling that allowed the subpoenas. "This far exceeds the enforcement powers of the U.S. courts," he said.

Several justices reacted skeptically, suggesting litigants are entitled to seek information to help them collect on court-issued judgments, even when the defendant is a foreign country instead of a private party. "What's wrong with asking" the banks about whether Argentina has assets that a creditor can target, Justice Anthony Kennedy asked.

The justices also said NML's subpoenas were written so broadly as to allow the creditor to discover financial information on much more than Argentina's commercial-property assets around the world. If the creditor is seeking information about Argentine assets related to military or diplomatic operations, "that's pretty intrusive," Chief Justice John Roberts said.

NML attorney Theodore B. Olson of Gibson Dunn & Crutcher LLP said his client has a right to obtain information that could help it collect against Argentina. "We need to know" where the country's assets are located, he told the court.

A decision is expected by the end of June.

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Neil Eggleston Picked for White House Counsel


by Publius
Posted April 21, 2014, 3:53 PM

BLT: The Blog of Legal Times reports:

W. Neil Eggleston, a white-collar defender in Kirkland & Ellis' Washington office, was named Monday the next White House counsel.

Eggleston was picked to replace Kathryn Ruemmler, a former Latham & Watkins partner who plans to stay at the post until mid-May, the White House said. Ruemmler intends to return to private practice in New York.

"Neil brings extraordinary expertise, credentials and experience to our team," President Barack Obama said in a written statement. "He has a passion for public service, is renowned for his conscientiousness and foresight, and I look forward to working closely with him in the coming years."

Eggleston is "the perfect person for this job" at this point in Obama's presidency, said Jamie Gorelick, who leads the defense and government-contracts practice at Wilmer Cutler Pickering Hale and Dorr.

"Whether a president is a Republican or a Democrat, the last two years of the second term is likely to be filled with investigations and that is something Neil knows very well and has abundant experience with," Gorelick said.

During the past 20 years, Eggleston has handled high-profile cases with deep ties to the White House. He represented former Obama White House chief of staff Rahm Emanuel during the criminal prosecution of former Illinois Gov. Rod Blagojevich.

Eggleston represented the Office of the President in the Monica Lewinsky investigation and secretaries of labor and transportation and U.S. senators in ethics inquiries. In the Lewinsky matter, Eggleston represented President Clinton on privilege issues.

Between 1993 and 1994, Eggleston was a White House lawyer under Clinton. In that role, he worked with Susan Davies, who joined Kirkland in 2011 as a litigation partner after serving as deputy White House counsel under Obama, according to a Kirkland announcement. In the White House, Davies oversaw the judicial nomination process.

Obama today praised Ruemmler, whose work at the White House included a focus on the judicial-nominations fight on Capitol Hill. 

"Kathy has become one of my most trusted advisers,” Obama said in the statement. "I deeply value her smarts, her wit, her impeccable judgment – but most importantly her uncanny ability to see around the corners that nobody else in the room anticipates. I will forever be grateful for her service to the country, will continue to seek her counsel, and most of all, I am proud to call her a close friend." . . .


Kennedy’s Question: How Will the Court Decide Hobby Lobby?


by Publius
Posted April 21, 2014, 1:26 PM

Adam J. White, counsel at Boyden Gray & Associates, comments in the Weekly Standard:

We often think of the Constitution as a two-part document: first the original 1787 text, which primarily establishes the government’s structure; and then the amendments, which primarily set forth our rights. But it’s not nearly that simple: Our government’s structure—its federalism and its separation of powers—was devised not just to promote energetic government, but also to secure individual liberty. Or, as Alexander Hamilton stressed in Federalist 84, “the truth is” that the original structural Constitution “is itself, in every rational sense, and to every useful purpose, a bill of rights.”

In recent years, the relationship between structure and rights has been emphasized by Justice Anthony Kennedy. And his comments at oral argument in Sebelius v. Hobby Lobby, the case challenging the Department of Health and Human Services’ “contraception mandate” on religious liberty grounds, suggest that he may be returning to that theme once again.

Because Justice Kennedy occupies the Court’s ideo-logical and tactical center, lawyers and pundits invest great effort in analyzing where he might land in any given case. In 2011 and 2012, as the constitutional challenge to Obamacare’s individual mandate made its way to the Court, all were focused on Justice Kennedy’s well-established habit of invoking the commerce clause, which divides power between the federal and state governments, as a bulwark of liberty.

Specifically, observers turned to Kennedy’s separate opinion in United States v. Lopez (1995). In that case, the Rehnquist Court held that the commerce clause did not empower Congress to regulate guns unconnected to interstate commerce. But Kennedy also wrote separately to stress that, “though on the surface the idea may seem counterintuitive, it was the insight of the Framers that freedom was enhanced by the creation of two governments, not one.” He continued by quoting James Madison’s Federalist 51:

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself. 

Kennedy reiterated these federalist themes in Bond v. United States (2011), this time writing for the majority to explain why an individual had “standing” to vindicate the states’ commerce clause interests in court. Again invoking Madison, he stressed, “Federalism has more than one dynamic.” While “the federal structure serves to grant and delimit the prerogatives and responsibilities of the States and the National Government vis-à-vis one another,” federalism protects more than just the respective domains of our national and state governments. “Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.”

And so a year later, when the Supreme Court decided the Obamacare individual mandate case, these federalist themes were central to the conservative justices’ opinion that the mandate exceeded the limits of the commerce clause. While the opinion was signed jointly by Kennedy, Scalia, Thomas, and Alito, the distinctive tones of Kennedy’s previous opinions rang clearly: “Structural protections—notably, the restraints imposed by federalism and separation of powers—are less romantic and have less obvious a connection to personal freedom than the provisions of the Bill of Rights or the Civil War Amendments,” the justices observed. But “the Framers considered structural protections of freedom the most important ones, for which reason they alone were embodied in the original Constitution and not left to later amendment. The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril.”

Even more recently, Justice Kennedy commingled notions of federalism and individual liberty in his opinion for the Court in Windsor v. United States (2013), striking down the Defense of Marriage Act’s federal definition of marriage. . . .

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Mike Carvin Profiled in Anticipation of SCOTUS Case Re Lying About Political Candidates


by Publius
Posted April 21, 2014, 10:09 AM

USA Today profiles Mike Carvin, a partner at Jones Day, regarding the upcoming oral arguments in a Supreme Court case regarding a state law that bans lying about political candidates:

The Supreme Court will hear arguments Tuesday in a Cincinnati case that touches on free speech in elections, with an anti-abortion group seeking to challenge the constitutionality of an Ohio law that bans lying about political candidates.

The case will pit two brilliant but stylistically opposite lawyers against each other, as they make competing arguments before the nine justices. Ohio’s State Solicitor Eric Murphy is an up-and-coming conservative star who will defend the Ohio law. Washington super-lawyer Michael Carvin is a seasoned Supreme Court veteran seeking to knock it down.

Murphy and Carvin will face off in a legal clash that began during the 2010 congressional race between then-Democratic Rep. Steve Driehaus and his GOP challenger Steve Chabot of Westwood. An anti-abortion group, the Susan B. Anthony List, wanted to launch a billboard ad campaign accusing Driehaus of supporting taxpayer-funded abortions by voting in favor of the federal health reform law.

Driehaus sought a ruling from the Ohio Elections Commission to block the ads, saying they violated the state’s false-claims law. SBA List challenged the Ohio law in federal district court, arguing it violated the group’s free-speech rights.

The district court dismissed the suits, ruling that SBA List and COAST, a Cincinnati anti-tax group that also challenged the law, didn’t have the right to sue because they hadn’t been criminally prosecuted. The Supreme Court agreed to hear the case in January.

The justices will not decide whether Ohio’s law is constitutional. Instead, the court will examine whether SBA List and COAST have legal standing – the ability to sue if they’ve been injured by the law.

If the Supreme Court rules that the groups have standing, they can proceed with a constitutional challenge to the Ohio law in the lower courts.

Carvin is representing SBA List and COAST; Murphy is representing the state.

Some big-time Washington attorneys specialize in schmooze and sweet talk. Not Michael Carvin.

So on Tuesday, when Carvin argues before the Supreme Court, those who know him say he will be blunt and brash, ready to do battle with any of the justices who lob a hostile question his way.

Carvin will be trying to persuade the justices that a Washington-based anti-abortion group should be able to challenge the constitutionality of Ohio’s false-claims statute, which bans lying about a political candidate to influence an election.

“Most lawyers who litigate in the Supreme Court have a very refined, laid-back, conservative manner. Mike is not that at all,” said Josh Blackman, a law professor at South Texas College of Law and author of “Unprecedented,” an account of the legal challenge crafted by Carvin and other lawyers to the Affordable Care Act.

“He is very much willing to go big,” with bold arguments that push the envelope, Blackman said.

Gregory Katsas, an attorney who works with Carvin in the Washington office of Jones Day, an international law firm, agreed that Carvin is an intrepid, creative force who spots legal openings that others miss. “His style is certainly very aggressive,” Katsas said.

Carvin’s resume illustrates his affinity for high-profile legal brawls, as well as his conservative political leanings. He represented the George W. Bush campaign before the Florida Supreme Court in the 2000 recount case. In the challenge to Obamacare, Carvin argued on behalf of the National Federal of Independent Business, a powerful advocacy group for small businesses.

In between, he won $60,000 in damages and more than $600,000 in legal fees for Rep. John Boehner, R-West Chester. Carvin represented Boehner when he filed a lawsuit in 1998 against Rep. Jim McDermott, D-Wash., accusing him of violating federal law by disseminating an illegally taped phone conversation between Boehner and then-House Speaker Newt Gingrich. An appeals court affirmed a favorable ruling for Boehner in 2007.

Now, in what will be his seventh appearance before the Supreme Court, Carvin’s target is an Ohio law that makes it illegal to knowingly or recklessly lie about a political candidate.

Carvin is representing Susan B. Anthony List, an anti-abortion group, in a case that started during the 2010 congressional race pitting then-Democratic Rep. Steven Driehaus against GOP challenger Steve Chabot of Westwood. SBA List wanted to launch a billboard campaign accusing Driehaus of supporting taxpayer-funded abortions by voting in favor of the federal health reform law. . . .

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Updated Info for Second Annual Executive Branch Review Conference


by Publius
Posted April 21, 2014, 9:16 AM

The Mayflower Renaissance Washington, DC Hotel
1127 Connecticut Ave NW
Washington, DC 20036
(202) 347-3000

A key element of the Practice Groups' Executive Branch Review project is our annual conference. This year's Executive Branch Review Conference is scheduled for Wednesday, May 7th as a full day conference at the Mayflower Hotel in Washington, D.C.

We will offer up to 4 CLE credits for this conference.


Last updated on April 17 at 4:00 p.m.
Updates in red.

Welcome & Opening Address
9:00 – 9:30 a.m.
East Room

  • Hon. David M. McIntosh, Partner, Mayer Brown LLP and Vice-Chairman, Board of Directors, The Federalist Society
  • Hon. Tom Cotton, U.S. House of Representatives, Arkansas

Suspension of Laws: What are the Limits of Executive Authority?
9:30 – 10:45 a.m.
East Room

  • Ms. Brianne Gorod, Appellate Counsel, Constitutional Accountability Center
  • Prof. Nicholas Quinn Rosenkranz, Georgetown University Law Center
  • Prof. Jonathan Turley, J.B. and Maurice C. Shapiro Professor of Public Interest Law; Director of the Environmental Law Advocacy Center; Executive Director, Project for Older Prisoners, The George Washington University Law School
  • Moderator: Mr. Stuart S. Taylor, Jr., Nonresident Senior Fellow in Governance Studies, The Brookings Institution

Policy without Process?
9:30 – 10:45 a.m.
Promenade Ballroom

  • Prof. Jonathan Adler, Johan Verheij Memorial Professor of Law; Director, Center for Business Law and Regulation, Case Western Reserve University School of Law
  • Mr. William L. Kovacs, Senior Vice President, Environment, Technology & Regulatory Affairs, U.S. Chamber of Commerce
  • Prof. Stephen I. Vladeck, Professor of Law, American University Washington College of Law
  • Moderator: Hon. Susan E. Dudley, Research Professor of Public Policy and Public Administration and Director, Regulatory Studies Center, The Trachtenberg School of Public Policy and Public Administration, The George Washington University

Disparate Impact Analysis
11:00 a.m. – 12:15 p.m.
Promenade Ballroom

  • Hon. Gail Heriot, Professor of Law, University of San Diego School of Law and Commissioner, U.S. Commission on Civil Rights
  • Hon. Peter N. Kirsanow, Benesch, Friedlander, Coplan & Aronoff LLP and Commissioner, U.S. Commission on Civil Rights and former Member, National Labor Relations Board
  • Prof. Theodore M. Shaw, Professor of Professional Practice in Law, Columbia University School of Law
  • Moderator: Mr. Adam Liptak, Supreme Court Correspondent, The New York Times

The Internal Revenue Service
11:00 a.m. – 12:15 p.m.
East Room

  • Mr. Michael A. Carvin, Partner, Jones Day
  • Dr. John C. Eastman, Henry Salvatori Professor of Law & Community Service, Chapman University School of Law
  • Dr. Craig Holman, Government Affairs Lobbyist, Public Citizen
  • Mr. Robert N. Weiner, Partner, Arnold & Palmer LLP

The Contraceptive Mandate
11:00 a.m. – 12:15 p.m.
Senate Room

  • Mr. Kyle Duncan, Duncan PLLC
  • Prof. Martin S. Lederman, Georgetown University Law Center
  • Ms. Elizabeth B. Wydra, Chief Counsel, Constitution Accountability Center
  • Moderator: Mr. Robert Barnes, Supreme Court Correspondent, The Washington Post

Luncheon Panel: Executive Power and the Role of the Coordinate Branches
12:30 p.m. – 2:00 p.m.
State Room

  • Prof. Steven G. Calabresi, Class of 1940 Professor of Law, Northwestern University School of Law and Chairman, Board of Directors, The Federalist Society
  • Mr. Charles J. Cooper, Partner, Cooper & Kirk, PLLC
  • Prof. William N. Eskridge, Jr., John A. Garver Professor of Jurisprudence, Yale Law School
  • Prof. Neomi Rao, Assistant Professor of Law, George Mason University School of Law

Keynote Address
2:15 p.m. – 3:00 p.m.
Promenade Ballroom

  • Hon. Ted Cruz, U.S. Senator, Texas 

Last updated on April 17 at 4:00 p.m.
Updates in red.

Registration details:

There is no cost to attend this event,
but there is a $50 charge if you wish to obtain CLE credits.

Lunch will be included.
Please register online to reserve your spot.


Contact the Mayflower Hotel directly for room reservations: (202) 347-3000.


UChicago Federalist Society Chapter Selected to Host National Student Symposium


by Publius
Posted April 18, 2014, 9:45 AM

The University of Chicago Law School distributed the following press release:

The Law School chapter of the Federalist Society for Law and Public Policy Studies has been selected by the national organization to host the 2015 Federalist Society Student Symposium under the theme “Law and Innovation.”

The Law School chapter emerged from a competitive field to host the symposium, which is expected to draw about 500 students for a two-day event in late February. The board will finalize the date, speakers, schedule, and other specifics in the coming months.

“The University of Chicago Law School has been a very strong and very good chapter at doing the core thing we want to do, which is fostering a vigorous discussion of ideas,” said Eugene Meyer, president of the Federalist Society, based in Washington, D.C. “The topic of innovation and how law can promote it is incredibly important to society, and we’re confident the Chicago chapter will do a great job putting a thought-provoking program together.”

Kathryn Bi, ’15, symposium chair, said the chapter leadership was inspired to talk about innovation and the law because of the changing realities of business and technology. The symposium will give the country’s future leaders a chance to talk about how America can maintain its “innovation edge,” through favorable political, regulatory, and business environments.

“This is a great chance to showcase our strengths in law and economics,” Bi said. “Our faculty has long been on the leading edge of analyzing the systemic effects of regulatory and policy decisions.”

Professor Todd Henderson, the group’s adviser, said he was proud of the leadership team for “their hard work and dedication” in earning the right to host the symposium, which was last held at the Law School in 1999.

“The theme of ‘Law and Innovation’ is especially fitting, since much that defines our school is about innovation,” Henderson said. “Law and economics, the most innovative and influential movement in law in the past 50 years, was largely started and defined at the Law School, and we continue to be among the leading innovators in this field and others in law.”

The student chapter, which now numbers more than 100 members, was established in 1980 by Lee Liberman Otis and David McIntosh as one of the three founding chapters of the Federalist Society, along with Harvard and Yale law schools. The founders “questioned the prevailing notion that big government could solve our country’s social, political, and economic problems,” according to a chapter history. The students teamed with conservative professors, including Antonin Scalia, Frank Easterbrook, Richard Posner, and Richard Epstein to found the organization.

Bi said today’s student chapter was indebted to Henderson and other faculty who offered help with preparing the bid, including William Baude, Adam Mortara, and Epstein. Dean of Students Amy Gardner and many Federalist Society alumni lent their support as well. “We’re very grateful to have alumni, administrators, and faculty who actively support our chapter,” Bi said.

One of those supportive alumni is Allyson Ho, ’00, who organized the last symposium at the Law School 15 years ago. Now she is co-chair of the appellate practice at Morgan, Lewis & Bockius LLP in Texas. She was thrilled to hear the symposium was coming back to her alma mater.

“This is an outstanding opportunity not only for the Chicago chapter, but also for the Law School as a whole, to host some of the leading legal minds in the academy, in government, and in public service,” she said.

M. Todd Henderson
Richard A. Epstein
Richard A. Posner
Amy M. Gardner
William Baude
Adam Mortara
Frank H. Easterbrook

Categories: External Articles

Supreme Court to Consider Challenge to Law Barring Campaign Falsehoods


by Publius
Posted April 16, 2014, 11:32 AM

The Los Angeles Times reports:

The Supreme Court next week will consider for the first time whether states may enforce laws that make it a crime to knowingly publish false statements about political candidates.

The justices will hear an antiabortion group's free-speech challenge to an Ohio law that was invoked in 2010 by then-Rep. Steve Driehaus, a Democrat. He had voted for President Obama's healthcare law and was facing a tough race for reelection.

The antiabortion group Susan B. Anthony List launched a campaign to unseat Driehaus, preparing to run billboard ads saying, "Shame on Steve Driehaus! Driehaus voted for taxpayer-funded abortion."

The statement was false, Driehaus said, since under the law no federal funds can be spent to pay for abortions. He threatened to sue the billboard company, which decided against running the ad. Then he complained to the Ohio Elections Commission, which found "probable cause" that the statement was false.

Before a hearing could be convened before the full commission, Driehaus lost his reelection bid and withdrew his complaint.

But the antiabortion group pressed ahead and is urging the Supreme Court to clear the way for a constitutional attack on the Ohio law as well as similar measures in 15 other states.

The justices are not expected to rule on the 1st Amendment issue at this time. Instead, justices are being asked to decide whether these laws can be challenged as unconstitutional even if no one is successfully prosecuted.

The case has prompted a lively debate over whether the law can separate truth from lies in election campaigns.

Washington attorney Michael Carvin, representing the antiabortion group, said the 1st Amendment protects broad free speech during political campaigns and frowns on interference from the government. He calls the Ohio measure a "speech suppressive" law that "inserts state bureaucrats and judges into political debates and charges them with separating truth from oft-alleged 'lies.'"

He said the state commission receives several dozen complaints each year and warned that the law gives government bureaucrats the power to sway a close race simply by saying a complaint has merit.

The Ohio law says violators can be prosecuted and punished by up to six months in jail and a $5,000 fine. But Carvin and other election law experts say they are not aware of any successful prosecutions.

He told the court that 15 states have similar laws. They are Alaska, Colorado, Florida, Louisiana, Massachusetts, Michigan, Minnesota, Montana, North Carolina, North Dakota, Oregon, Tennessee, Utah, Wisconsin and West Virginia.

He said these laws were "almost certainly unconstitutional." . . .

Categories: External Articles

New Engage Article: Michael McConnell on Sebelius v. Hobby Lobby Stores, Inc.


by Publius
Posted April 16, 2014, 9:50 AM

Last week, our law journal Engage published an essay by Stanford Law Professor and former Tenth Circuit Judge Michael W. McConnell on the oral arguments in Sebelius v. Hobby Lobby Stores, Inc. Prof. McConnell said there are four major legal questions for the court to decide:

  1. Could Hobby Lobby avoid a substantial burden on its religious exercise by dropping health insurance and paying fines of $2,000 per employee?
  2. Does the government have a compelling interest in protecting the statutory rights of Hobby Lobby’s employees?
  3. Would a ruling in favor of Hobby Lobby give rise to a slippery slope of exemptions from vaccines, minimum wage laws, anti-discrimination laws, and the like?
  4. Has the government satisfied the least restrictive means test?

He then argued that the answer to all four questions is "no." Read his full article here.




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