FedSoc Blog

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Several cases have brought to the fore the duty of the executive branch of government, either at the federal or state level, to zealously defend a duly enacted law, initiative or referendum. Our panel of experts will discuss how this duty applies generally, as well as in the matters of California's Prop. 8 case, the Defense of Marriage Act litigation, and "Don't Ask, Don't Tell."

The panel is comprised of Prof. John S. Baker, Jr. of Louisiana State University's Paul M. Hebert Law Center; Prof. Walter Dellinger, Chair of the Appellate Practice at O'Melveny & Myers LLP; and Prof. John C. Eastman, Director of the Center for Constitutional Jurisprudence and former Dean of Chapman University School of Law. It is moderated by Mr. Dean A. Reuter, Director of Practice Groups at the Federalist Society.

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Charlie Savage reports on The New York Times' blog The Caucus that a letter from Professor Laurence H. Tribe of Harvard Law School to President Obama bluntly characterizing current Justices on the Supreme Court and potential nominees to replace Justice Souter has surfaced and has been posted to the website of the Ethics and Public Policy Center. Tribe advises the President to appoint Elena Kagan as Justice Souter's successor rather than Justice Sotomayor, who was actually nominated and confirmed to the seat.

Savage organizes Professor Tribe's advice by potential nominee/Justice. Among other things, Tribe writes that Justice Kennedy is in danger of "drifting in a direction that is both formalistic and right-leaning on matters of equal protection and personal liberty," and that then-Judge Sotomayor is "not as smart as she seems to think she is" and that she has a "reputation for being something of a bully" that may "backfire and simply add to the firepower" of the conservative wing of the Court.

Tribe now states in an e-mail to The New York Times that he would not comment on his advice, which was confidential, but that "(t)he reservations I expressed about Justice Sotomayor prior to her nomination were amply refuted by the closer study I was able to give her record before the president made his decision and were happily negated by her performance as a justice thus far."

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The Blog of Legal Times reports that lawyers specializing in tort defense spoke yesterday at the U.S. Chamber of Commerce's Institute for Legal Reform annual conference on reforming the way in which plaintiffs' lawyers are investigated and sanctioned for misconduct. They argued that the plaintiffs' bar is not being policed well and that investigations tend to proceed slowly and ineffectually.

One example of alleged misconduct the lawyers at the conference raised was the dismissal of litigation related to silica in Corpus Christi, Texas, where U.S. District Judge Janis Graham Jack determined that doctors and plaintiffs' lawyers had committed misconduct. For more on the silica litigation and the following report from RAND that provided methods for preventing such problems in the future, click here to read an article from the March 2010 edition of the Federalist Society's Practice Groups journal Engage by Mark A. Behrens and Corey Schaecher.

Meanwhile, the American Association for Justice, an organization of plaintiffs' lawyers, is using the Chamber's conference to discuss the Chamber's use of litigation, which it says is hypocritical because the Chamber wishes to limit lawsuits from others.

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The Las Vegas Review-Journal reports that the voice of Justice Sandra Day O'Connor, who has retired from the Supreme Court bench but continues to sit in for recused judges in lower court cases, was featured on thousands of robo-calls at 1 AM in Nevada advocating for Question 1, which would change the way in which Nevada selects its judges by instituting a gubernatorial appointment system based on the Missouri Plan. Justice O'Connor has since apologized for the calls, which were intended to go out at 1 PM, and says that she did not authorize the use of her voice in these messages.

This development has triggered calls from some commentators that Justice O'Connor should fully resign from the bench by ceasing to sit in for recused judges. Ed Whelan writes on NRO Bench Memos that the Code of Conduct for United States Judges does not allow judges to engage in "political activity" and provides no exceptions allowing judges to campaign on behalf of ballot initiatives.

Gary Marx, also discussing Justice O'Connor's advocacy for the measure on Bench Memos, writes that "O'Connor's robo-call antics are a dramatic departure from her public posturing as a thoughtful neutral arbiter of the law and represent a serious ethical breach." He calls on her to resign and encourages journalists to investigate the calls to determine if she violated any further ethical standards in coordinating with the campaign for Question 1.

On the other hand, on The New York Times' blog The Caucus, Prof. Stephen Gillers of NYU Law argues that "robo-calls solely on the issue of a ballot measure falls within the canon that permits speaking and other activities on the law, the legal system and the administration of justice," and thus that Justice O'Connor did nothing unethical.

The Wall Street Journal published an editorial today discussing a new piece of legislation in Congress that would allow federal officials to prosecute people for self-dealing and CEOs who do not act in the best interests of their companies' shareholders. According to officials in the Obama Administration, this legislation would "remedy" the U.S. Supreme Court's unanimous ruling in June that the federal honest services fraud statute was unconstitutionally vague and that its scope was limited to bribery and kickbacks.

The editorial argues that such legislation is merely trying once again to give prosecutors at the Department of Justice unbridled discretion in pursuing and convicting people who are "suspected of being slippery" but whom the Department cannot prove have committed specific crimes. The result of such legislation, the authors say, will be a "kitchen-sink statute" that allows the Obama Administration to convict "the many villains it sees across the private economy."

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On Oct. 13, the Supreme Court heard oral argument in Skinner v. Switzer. The question in this case is whether a convicted prisoner seeking access to biological evidence for DNA testing may assert that claim in a civil rights action under 42 U.S.C. § 1983 or whether such a claim may be asserted only in a petition for a writ of habeas corpus. In this post-argument edition of SCOTUScast, Evan A. Young discusses the case.

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The calls to change to a Missouri Plan system in North Carolina have drawn attention away from another important issue concerning the North Carolina Supreme Court that has received virtually no attention: the relatively few number of cases the Court decides each year. Over the last decade, the North Carolina Supreme Court has been deciding fewer and fewer cases, leaving the legal community, entrepreneurs, business owners, and others with few guidelines to follow.

A new White Paper, authored by Scott W. Gaylord and published by the Federalist Society, seeks to focus attention on both sides of the judicial selection debate as well as the diminishing productivity of our Supreme Court, in an effort to promote a more robust and informed debate on both issues. Click here to read the paper. Click here to read other papers on the North Carolina courts published by the Federalist Society.

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Richard Epstein has a new article on Forbes today discussing a report he recently prepared for the Manhattan Institute about the rise of conflict of interest regulations regarding drug and medical device firms. While he recognizes that a scientist or physician may have conflicting interests, in that his interest in serving patients and the academic community may conflict with his interest in making money, an attempt to severely regulate the field in order to reduce the consequences of these conflicts may be misguided and may inhibit research and development.

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Eugene Volokh has an interesting post on The Volokh Conspiracy discussing how courts deal with an individual's religious exemption claim when most of the individual's coreligionists do not share the person's belief. American courts, including the U.S. Supreme Court, have generally held that a person's beliefs can be the basis for an exemption even when they are not widely held by members of the same religion or religious sect.

Volokh posits that judges are more inclined to find that someone sincerely holds a belief if it is a familiar one to the judge and argues that religious beliefs, whether or not they are in the minority of beliefs, should be treated the same as beliefs that are more mainstream in our society.

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The Wall Street Journal published an editorial today discussing a ballot initiative in Nevada that would switch the state from judicial elections to the "Missouri plan" for selecting judges, in which a nominating commission chooses a slate of judicial candidates from which the Governor picks. The authors argue that George Soros and others are financing the effort to push through such initiatives because "merit selection," which allows bar associations and lawyers to nominate judges from their own ranks, tends to move state courts to the "activist left."

The editorial contends that selection by a judicial nominating panel is just as political as selection by Nevada voters:

Judicial elections aren't always pretty, but they do provide an important check on a branch of government that has itself become increasingly political. A system in which Governors can nominate anyone subject to legislative approval can also work, as it does for the federal courts.

But the worst system is to subcontract the third branch of government to a judicial elite who give elected officials little leeway. While parading as "merit" selections, these judges are political choices as much as any elected by voters. Nevada voters should send a message that their judiciary can't be bought.

On the other hand, in an editorial recommending that voters adopt the initiative, the Las Vegas Sun argues that "(t)he issue is whether the public vote is the best way to select judges, and in our view, it hasn't produced the best judges." According to this editorial, selection of judges by the Nevada Governor due to vacancies has consistently produced better judges than those chosen by voters.

Chief Justice John Roberts returned to his home town and spoke at Canisius College in Buffalo, N.Y. earlier this week, reports the LA Times Top of the Ticket blog. Among other subjects, he discussed the small type on warnings that come in prescription drug packages, which he said provide so much information that no one reads them and are the result of our legal system, and the Justices' attendance at the President's annual State of the Union address.

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Amanda Bronstad writes in the National Law Journal that a three-judge panel of the Ninth Circuit Court of Appeals has granted the federal government's emergency motion to temporarily stay a federal district court's injunction on the military's policy of "Don't Ask, Don't Tell," which bans openly gay service members. It stated that the reason for this stay was "to provide this court with an opportunity to consider fully the issues presented." The Justice Department asked for the temporary stay in order to give it time to argue for a complete stay pending the apeal from the district court decision.

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On Oct. 14, Prof. Randy Barnett of Georgetown University Law Center delivered the Sixth Annual Friedrich A. von Hayek Lecture at NYU Law on the subject of the health insurance mandate passed by Congress this year. Prof. Barnett argues that the mandate, which provides for financial penalties for those who can afford to buy health insurance but do not do so, is unconstitutional. Earlier in the day, Florida District Judge Roger Vinson denied the federal government's motion to dismiss a lawsuit challenging the mandate.

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In 2008, Chief Justice Cliff Taylor lost his bid for re-election to the Michigan Supreme Court to Justice Diane Marie Hathaway. The result of that election was of particular importance to the legal community and court watchers in Michigan because, as one Michigan newspaper put it, “Many of the most controversial recent decisions by the seven-member [Michigan Supreme] Court have been issued by a Taylor-led, four-vote conservative majority.”

Court watchers and opinion leaders have observed the Michigan Supreme Court’s trends since the 2008 election to determine whether the shift in judicial philosophy that many expected had indeed come to pass. To help shed further light on that question, a new white paper by C. Thomas Ludden, published by the Federalist Society, analyzes several areas of law that the Michigan Supreme Court has considered since Justice Hathaway took her seat, with special emphasis on areas of the law that have the potential of directly impacting Michigan’s economy. Click here to read the paper.

The Federalist Society has also published a statewide survey from the polling company^TM, inc./WomanTrend of 500 likely voters in Michigan about the state supreme court and different forms of jurisprudence. Click here to view the survey.

Click here to see other white papers from the Federalist Society.

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In October 2004, a white paper by James C. Dunlop and Tara A. Fumerton and published by the Federalist Society examined the jurisprudence of the Illinois Supreme Court to discern the Court’s outlook: was this an “activist” court, or one prone to judicial “restraint,” or did it fall somewhere in between? Their overall purpose was to discern whether the Court was exercising a truly judicial function—“to say what the law is”—without regard to outcome, or usurping legislative or executive functions that are the province of those other branches.

In a new white paper, the authors revisit their prior analysis by examining some key decisions since 2004 that are illustrative of the Court’s current judicial philosophy. Click here to read.

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