FedSoc Blog

The Orlando Sentinel has an article from Martin E. Comas asking whether, and in what circumstances, people may be forced to give their names to police officers, after police arrested a woman in Florida for not giving her full name to officers when they responded to complaints that she was dressed inappropriately at a water park. The answer to the question, Comas writes, depends on whether one is detained or would feel free to leave.

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John Schwartz writes in the New York Times today that, despite the defeat yesterday of a federal bill that would have effectively authorized the executive branch to reverse the military's "don't ask, don't tell" policy, the movement for gay rights has experienced recent success in the court system. Federal courts have recently struck down as unconstitutional both the Defense of Marriage Act and California's same-sex marriage ban, Schwartz notes, and these cases seem to portend a shift in strategies of gay rights activists from litigating in state courts to trying their cases in the federal system.

Schwartz's article indicates, however, that the road ahead for these legal challenges may be risky and that it is uncertain, in the end, how the U.S. Supreme Court will come down on issues of gay rights now working their way through the federal courts.

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The New York Times reports that Senate Democrats were unable today to muster the votes necessary to bring to the floor a military bill including a provision allowing President Obama to end the "don't ask, don't tell" policy established during the Clinton Administration. The vote was 56-43, with Democrats not receiving the 60 votes necessary to avoid a filibuster. The bill will most likely be taken up again after the November elections, and David M. Herszenhorn suggests in the article that it may garner more support in the Senate in the lame-duck session.

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During a question-and-answer session Friday with a professor at the University of California Hastings College of the Law, Justice Scalia argued that the U.S. Constitution does not forbid discrimination based on sex or sexual orientation, reports the San Francisco Chronicle. "Nobody thought it was directed against sex discrimination," said Scalia; instead, he stated, it was directed at racial discrimination and should be interpreted in this way today.

The Justice also discussed such topics as his views on adhering to precedent and on cameras in the courtroom. The event marked the 24th anniversary of Justice Scalia's Senate confirmation.

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Stuart Taylor Jr. has an article on Newsweek.com about the various predictions from supporters and opponents of the new federal health care law about how the law will fare before the U.S. Supreme Court. As Taylor writes, two federal judges, one in Florida and the other in Virginia, have now suggested that the cases by officials of twenty states and three other plaintiffs challenging the law's individual mandate, which requires that uncovered individuals buy health insurance or face financial penalties, have merit.

Many observers, including Walter Dellinger and Tom Goldstein, both of whom are Supreme Court litigators, predict that the Court will vote at least 7-2 in favor of the constitutionality of the law, since the Court has not struck down a major piece of legislation as being beyond Congress's Commerce Clause power for around 75 years. Opponents of the law, including David Rivkin, who argued the case against the mandate last week, believe that they can convince the four conservative Justices and Justice Kennedy that the law is beyond Congress's power.

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Jerry Markon writes today in The Washington Post that the U.S. Department of Justice, in a report by Inspector General Glenn A. Fine, found certain FBI practices involving the monitoring of domestic organizations during the Bush Administration "troubling" and "without adequate basis," though it cleared the FBI of the allegation that the agency targeted any of these groups based on activities protected by the First Amendment. Three of the groups that the report says were monitored improperly were the Thomas Merton Center, People for the Ethical Treatment of Animals, and Greenpeace USA, the last of which had affiliates placed on a terrorist watch list.

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Robert Barnes reports in an article in The Washington Post today that Louisville is still attempting to maintain racial integration in its public schools, three years after the U.S. Supreme Court declared in its landmark decision Parents Involved in Community Schools v. Seattle School District No. 1 that the city's efforts to desegregate its schools violated the U.S. Constitution's Equal Protection Clause. However, the city is now using socioeconomic factors, instead of race alone, to attempt to integrate its school system, basing its plan to move forward on Justice Kennedy's concurring opinion in the case.

While officials on the school board in Louisville argue that not all children can succeed in a school system whose classrooms are segregated, opponents of the board's plan to diversify classrooms counter that the neighborhoods in the school district are already diverse and that parents should not be forced to send their children exceedingly long distances in order to satisfy the board's vision of desegregation.

The New York Times' Room for Debate Blog has a discussion on the firing last week of a New Jersey Transit worker for burning a Koran on Sept. 11 while he was off-duty. The conversation among Alan M. Dershowitz, Paul Butler, Eugene Volokh, Salam Al-Marayati, John C. Eastman, and Christopher Dunn centers on whether the First Amendment prohibits the firing of a public employee for speech outside of work.

Ilya Shapiro reports on Cato @ Liberty Blog that a new judicial takings case soon may be headed for review by the U.S. Supreme Court. As Shapiro explains, in PPL Montana, LLC v. Montana, the Montana Supreme Court held that the Missouri, Clark Fork, and Madison rivers were navigable when Montana became a state, thus giving Montana title to hundreds of miles of riverbeds that, prior to the ruling, belonged to private property owners in the state. This case may give the Court the opportunity to detail its holding in Stop the Beach Renourishment from last Term that judicial takings are possible.

The New York Times reported last week that the 9th Circuit Court of Appeals upheld a district court judge's decision to dismiss a case filed by the American Civil Liberties Union on behalf of five former C.I.A. prisoners against Jeppesen Dataplan Inc., a Boeing subsidiary, for allegedly flying them overseas to be tortured in prisons both by C.I.A. employees and by officials of other countries. The Obama Administration argued, and the 9th Circuit agreed, that such a lawsuit would force the government to expose sensitive state secrets and that the need to protect these secrets outweighed the plaintiffs' right to sue over their alleged injuries.

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The Huffington Post reports that President Obama renominated five nominees for the federal judiciary Monday, setting up new hearings before the Senate Judiciary Committee. The nominees are Judge Robert Chatigny for the 2nd Circuit Court of Appeals, Judge Edward Chen for the District Court for the Northern District of California, Justice Louis J. Butler Jr. for the District Court for the Western District of Wisconsin, Prof. Goodwin Liu for the 9th Circuit Court of Appeals, and John McConnell for the Rhode Island district court.

According to Sam Stein of The Huffington Post, the President intended the renominations to highlight the slow pace at which the Senate is filling vacant seats on the federal judiciary. For past FedSoc Blog posts on the pace of judicial nominations during the Obama Administration, click here, here, and here.

Oral arguments are set to begin today in the lawsuit by twenty states challenging the constitutionality of the Obama Administration's health care law, which was passed earlier this year, AP reports. The challenge will focus on the individual mandate provision of the law, which requires individuals to buy health insurance or face monetary penalties, and the provision of the law requiring states to pay extra Medicaid costs.

In light of the oral arguments, Carrie Severino has an op-ed on AOL News supporting the states' challenge to the law and arguing that the individual mandate is incompatible with the constitutional principle of limited government.

The Boston Review has a new forum called "Democracy After Citizens United," in which Lawrence Lessig, Will Wilkinson, Marvin Ammori, David Donnelly, David N. Bossie, and Allison R. Hayward debate the effect of the Supreme Court's decision in that case on the political system in the United States. Click here to check out the discussion.

In response to recent news stories on Senate Republicans delaying votes on federal court vacancies (click here and here for past FedSoc Blog posts on these stories; click here for a Roll Call story on the subject), Carrie Severino argues on National Review Online Bench Memos that President Obama and the Senate Democrats are in fact to blame for the persisting vacancies, since, she says, the President has nominated judges to fewer than half the existing vacant seats and Democrats haven't devoted floor time to judicial nominees.

Severino also points to the two Supreme Court nominations in the past two years and argues that the drain that these nominations have placed on Senate Judiciary Committee resources have contributed to the lack of lower court confirmations through President Obama's first term.

In addition, Ed Whelan posted on Bench Memos last week disputing the statistics used in the LA Times article to describe Presidents Bush and Obama's rates of having federal judges confirmed.

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The American Justice Partnership (AJP), a small conservative organization, has issued a report claiming that George Soros's Open Society Institute has been backing "a highly coordinated, well-funded campaign" to alter state judicial elections in order to have more liberals placed on the bench, according to The Washington Post. Some of the groups allegedly supporting this campaign have denied the allegations and respond that they receive financial backing from both parties and differ on what is the best way to change judicial elections. The AJP's full report is here.

Click here to read Dan Pero's op-ed in The Washington Times discussing the AJP's report and arguing that judicial "merit selection" plans are likely to lead to trial lawyers choosing who will sit on the bench.

Click here to read Carrie Severino's post on National Review Online Bench Memos criticizing former Supreme Court Justice Sandra Day O'Connor's appearance on a panel supporting Iowa's system of selecting judges and arguing that, in light of the findings in the AJP report, Justice O'Connor is in danger of lending credence to George Soros's plan to reshape the state court system.

Click here for The Blog of Legal Times post on the report and the take of former Chief Justice Cliff Taylor, who was ousted from the Michigan Supreme Court in an election in 2008, on his removal from office.