On June 17, the Supreme Court announced its decision in Dillon v. United States. The Court held that federal law required sentence reductions to coincide with U.S. Sentencing Commission policy, and as the latter precluded reductions inconsistent with the Federal Sentencing Guidelines, the Booker holding was inapplicable. For this post-decision edition of SCOTUScast, we have Ave Maria School of Law Professor Kevin H. Govern.
Jonathan Adler has a post on Volokh Conspiracy today analyzing the reasoning of Judge Bolton's decision to enjoin parts of the new Arizona immigration law (click here for Orin Kerr's prelimary take on the opinion). He finds that the judge's rejection of Arizona's interpretation of its own law is not abnormal and that the decision is not as clear as it could be because of the time constraints placed on the judge. Click here for the opinion. SCOTUSBlog's Lyle Denniston reports that both the U.S. and Arizona have asked the Ninth Circuit to put the case on a fast track, so we may see the court of appeals weigh in on the case soon.
The Madison Chapter of the Federalist Society for Law and Public Policy Studies held its inaugural event on July 27, 2010 at the Madison Club. Judge Diane Sykes, a federal judge on the United States Court of Appeals for the Seventh Circuit and former Justice of the Wisconsin Supreme Court, gave the keynote address. Click here for the audio/video at WisEye.org.
Today, the Hawaii Lawyers Chapter will host a luncheon featuring former Texas Solicitor General Ted Cruz. On Wednesday, August 4, the Austin Lawyers Chapter will host Greg Coleman and Ed Dawson of Yetter Coleman for its annual "U.S. Supreme Court Round-Up: A Review of the 2009-10 Term." The Los Angeles Lawyers Chapter will also host a Supreme Court Round-Up, featuring Dean Erwin Chemerinsky of the University of California, Irvine School of Law, and Professor John Eastman of Chapman University School of Law. Judge Sandra Ikuta, U.S. Court of Appeals for the Ninth Circuit, will moderate.
Click here to visit the event page on our website for more upcoming Federalist Society events.
Justice Antonin Scalia spoke at Montana State University Wednesday, arguing that the theory of a "living constitution" should be rejected and that the Supreme Court should not serve as the moral arbiter of the nation. "Nothing that I learned in my courses at Harvard law school, none of the experience I acquired practicing law qualifies me to decide whether there ought to be, and hence is, a fundamental right to abortion or assisted suicide," he said. He also defended the Court's decision in Citizens United and characterized the Supreme Court nomination process as "controversial and absurd political theater."
On June 21, the Supreme Court announced its decision in Holder v. Humanitarian Law Project. The Court held that the statute that prohibits giving material support to terrorist organizations was constitutional as applied to the particular forms of support that the plaintiffs sought to provide to foreign terrorist organizations. In this post-decision edition of SCOTUScast, we have Charlotte School of Law Professor D. Scott Broyles to discuss the case.
U.S. District Judge Susan Bolton enjoined certain provisions of the Arizona immigration bill from taking effect today, blocking portions of the law requiring immigrants to carry their papers at all times, making it unlawful for illegal immigrants to seek out employment in public places, and requiring officers to check a person's immigration status when that person is stopped for an alleged other legal violation and reasonable suspicion exists that the person is undocumented, the Wall Street Journal reports. Click here to read the full text of the court's order.
UPDATE: Julia Preston has an article in The New York Times today characterizing Judge Bolton's order enjoining the above provisions of the Arizona immigration law as a vindication of the Obama Administration's decision to challenge the law and to assert its authority over states in immigration matters, and as a warning to states considering similar laws. By granting the injunction, Judge Bolton indicated that the federal government was likely to win on the merits of the case. The Washington Post reports that Arizona officials are prepared to continue their battle if they lose in district court. As Governor Jan Brewer says, "I will battle all the way to the Supreme Court, if necessary."
Republican Senator Olympia Snowe of Maine announced Wednesday that she will vote to confirm Elena Kagan to the Supreme Court, stating that she uses the same standard to evaluate Supreme Court nominees of Republican and Democratic Presidents, and that Kagan possesses "the strong intellect, respect for the rule of law, and understanding of the important but limited role of the Supreme Court...required of any Justice." Senator Snowe joins Senators Lindsey Graham, Richard Lugar, and Susan Collins as Republican Senators supporting the nomination.
Meanwhile, Senator Jeff Sessions, the senior Republican on the Judiciary Committee, warned Senators against voting for Kagan, stating that she is "a dangerous, progressive, political-type nominee," reports Julie Hirschfeld Davis of The Associated Press.
For more news and commentary on the nomination of Elena Kagan, visit the Federalist Society's SCOTUSreport.com and check out its special feature, the Kagan Vote Tracker, which tracks the Senators who have stated whether or not they will vote to approve Kagan's nomination.
Brian T. Fitzpatrick of Vanderbilt Law School has an article in the Summer 2009 issue of the Missouri Law Review evaluating the merit judicial selection system, in which lawyers and bar associations maintain an important role in selecting judges who are to be appointed, and examining whether such a system can be justified. Click here to view the article.
The Boston Globe reports that the Massachusetts Legislature has passed a new law under which all of its electoral votes will be awarded to the candidate who wins the national popular vote, a plan being pressed in state legislatures across the country by the organization National Popular Vote, Inc. The aim of supporters of the plan is to bypass the traditional Electoral College system in presidential elections.
Click here to read Legal and Logistical Ramifications of the National Popular Vote Plan, a paper by Tara Ross and published by The Federalist Society which analyzes the potential consequences of the national popular vote plan.
Dan Eggen reports in The Washington Post that Senate Republicans were able to block the proposed Disclose Act from coming to a floor vote yesterday, as bill proponents could only muster 59 votes to move the legislation forward. The Act would require greater disclosure of money used to fund political advertising. Click here to see an analysis of the bill and its constitutional and policy ramifications by Prof. Allison R. Hayward of George Mason University School of Law for the Federalist Society's New Federal Initiatives Project.
In an article published today in The New York Times, Kevin Sack notes that states like Texas are moving forward with implementation of the new health care law even as they sue to overturn it. While Texas Governor Rick Perry says he will fight the law "on every front," his state is currently working to expand its share of Medicaid costs, create the required health insurance exchange, and oversee new regulations on insurers, writes Sack.
Rachel La Corte wrote an article published in The Seattle Times on Saturday discussing the re-election bids of three Washington Supreme Court justices, Chief Justice Barbara Madsen, Justice Richard Sanders, and Justice Jim Johnson. Justices Sanders and Johnson both face challengers in their primaries, while Chief Justice Madsen is running unopposed and will advance to the ballot in November.
In light of these judicial elections, the Federalist Society has published a new white paper, The Washington Supreme Court and the State Constitution: A 2010 Assessment, by Michael Bindas, David K. DeWolf, and Michael J. Reitz, that discusses some of the important issues currently facing the Washington Supreme Court that may be influenced by the elections. In this paper, the authors examine the Court's record in three specific areas in which it must pay particular attention to the state constitution and the limits it imposes upon state and local government: property rights (particularly in relation to the power of eminent domain), the Washington Constitution's Privileges or Immunities Clause, and individual liberties. Through the paper, the authors seek to fuel a more intensive and widespread public discussion about whether the Court needs to be more definitive in defining the rights-based parts of the Washington State Constitution and whether the scope of the protections afforded by the Court meet the mark in terms of the text and meaning of the state constitution.
In response to a Washington Post article on House Democrats' complaints about the Senate, Prof. Sandy Levinson has two posts on Balkinization this week about amending the Senate's rules in order to eliminate or alter the Senate filibuster. The first post, from yesterday, discusses the possibility that Vice President Biden, in anticipation of the upcoming election, might declare that the Senate is not a continuing body and thus can amend its rules by majority vote, including getting rid of the filibuster. The second post, from today, argues that even though the filibuster should be destroyed or changed in most circumstances, it should be retained in a few situations. The situations in which we should retain the filibuster, Levinson argues, are lifetime appointments (such as Supreme Court nominations) and circumstances in which the "majority" of the Senate that approves of the legislation does not actually represent a majority of Americans.
Ashby Jones posted yesterday on The Wall Street Journal Law Blog about the legal implications of Wikileaks' release of documents to The New York Times, The Guardian, and Der Spiegel containing classified information on the war effort in Afghanistan. The question explored in the post is what the U.S. can do to leakers of such classified information and the media organizations that publish it. As to the media organizations, the answer, as discussed by Prof. Fred Schauer of Virginia Law and Prof. Jack Balkin of Yale Law, depends on where the organizations are located and how active a role they played in causing the information to be leaked. On the other hand, any military leaker of the information appears likely to face court martial and criminal charges.