FedSoc Blog

Proposition 8 Defenders File Appeal with Supreme Court

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by Publius
Posted July 31, 2012, 3:55 PM

Lyle Denniston writes at SCOTUSblog:

Supporters of California’s “Proposition 8,” a ballot measure adopted by voters four years ago to ban same-sex marriage in the state, urged the Supreme Court on Tuesday to uphold the ban and thus put it back into full effect.  The petition and appendix (a file of nearly 500 pages) are here.  The case is Hollingsworth v. Perry.

The document raised a single question: whether the Constitution’s guarantee in the Fourteenth Amendment of legal equality prohibited California from “defining marriage as the union of a man and a woman.”  A three-judge panel of the Ninth Circuit Court split 2-1 in early February in striking down the proposition, finding that it was motivated by hostility to gays and lesbians.  The filing of the petition by “Proposition 8″ backers was the latest in a round of new appeals to the Justices on same-sex marriage issues.  The other new cases involve the constitutionality of the 1996 federal law, the Defense of Marriage Act, that permits federal benefits only for marriages of a man and a woman.  Those cases, though, do not raise the issue of whether there is a constitutional right for homosexuals to marry, as does the California case.

Presumably, the cases will be ready for the Court to consider later this summer or early in the new Term that starts October 1.  While there is no guarantee that any of the cases will be granted, it seems highly likely that at least some of them will be.  The Court has never decided, after full review, a case on gay marriage.  It also has never specified the constitutional test to be applied to laws that are claimed to discriminate on the basis of sexual identity.

 

California so far is the only state that, after having once accepted same-sex marriage as a legal right (that was done in California by the state Supreme Court), then voted to take away that right.  That withdrawal is the main reason that the Ninth Circuit majority found the ballot measure to be unconstitutional.  The majority relied heavily upon a 1996 Supreme Court decision, Romer v. Evans, nullifying a Colorado constitutional amendment that took away the rights of homosexuals to seek laws in their favor.   That withdrawal, the Supreme Court said then, was invalid because it was based upon “animus” toward homosexuals as a group.

Six states and Washington, D.C., now recognize same-sex marriage, and two other states have adopted measures to do so, but those are subject to veto by voters at the November elections.  In the new petition, “Proposition 8″ supporters argued: “The profoundly important question whether the ancient and vital institution of marriage should be fundamentally redefined to include same-sex couples ‘is currently a matter of great debate in our nation,’ as the court below acknowledged, ‘and is an issue over which people of good will may disagree.’”

Arguing that the issue should be left with the states to decide individually, the petition said that, until the Ninth Circuit had struck down the California measure, every court — state and federal — has upheld the traditional definition of marriage.  The petition also asserted that the Supreme Court has done so, too, in the 1972 decision in Baker v. Nelson.   The Baker decision was a summary ruling, without briefing and oral argument.  Whether that is a binding precedent controlling the same-sex marriage issue now is a subject of ongoing debate in the lower courts, and will be a central issue for the Supreme Court if it grants review of the California case.

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Richard Epstein: Judge Posner Gets it Wrong on Patents

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by Publius
Posted July 31, 2012, 1:48 PM

Richard Epstein writes at Defining Ideas:

President Barack Obama has encountered a torrent of opposition for his use of what the Wall Street Journal’s Kimberly Strassel shrewdly described as Four Little Words: “You didn’t build that.” The President used these words to show that private success rests on public infrastructure. But in so doing, he slighted the importance of private initiative and innovation. The pushback has been enormous.

Right now, the patent system is also under major attack from a large number of scholars and judges who think that the way to industrial progress lies through an expanded public domain. The collective war cry here is not, at least for the moment, “You didn’t invent that.” Nonetheless, the clear thrust of the current anti-patent fervor is that, all too often, innovators do not receive sufficient legal protection for their patents even when they did invent them. We need some pushback against this overwrought position.

The anti-patent sentiment has just been fueled by a remarkable opinion by Judge Richard Posner, my long-time colleague at the University of Chicago, sitting as a trial judge in the major case, Apple v. Motorola. The high-profile case concerns five patents—four by Apple and one by Motorola—that are involved in mobile phone technology, and it has drawn more than its fair share of attention. Judge Posner took the extraordinary step of dismissing the claims of both sides with prejudice—meaning, the case cannot be filed again elsewhere—on the grounds that neither side could make good on its argument for either damages or injunctions.

Thus, when the dust settled, there was no reason at all to have a trial on whether either side had infringed the patents of the other. In a subsequent piece written for The Atlantic, grandly entitled “Why There are Too Many Patents in America,” Posner delivered a general critique of the patent system, discussing the broader issues involved in his judicial decision.

Posner’s criticism of patent proliferation reminds me of the famous exchange between the Emperor Joseph II and Mozart on the premier of Mozart’s opera, “The Abduction from the Seraglio,” as recounted in the movie Amadeus:

Emperor Joseph II: My dear young man, don't take it too hard. Your work is ingenious. It's quality work. And there are simply too many notes, that's all. Just cut a few and it will be perfect.

Mozart: Which few did you have in mind, Majesty?

Which patents does Posner have in mind?

To answer that question, it is important to place Posner’s latest sally on patent proliferation into its broader social context. The fashionable academic attack on patents is just one part of the full-scale attack on market institutions that has led to an economy mired in 1.5 percent annual GDP growth. The basic debate in this field can be summarized in one proposition: Strong patent protection is a threat to the overall operation of the legal system, so the appropriate set of remedies calls for narrowing the scope of the patent system at every opportunity.

The current three-part attack on the patent system starts with the proposition that the requirements needed to obtain a patent should be restricted, especially in the areas sof software and business method patents. Second, the ability to license patents should be restricted. Finally, the remedial protections given to patents by way of damages and injunctions should be weakened.

Damages should be harder to get, and calculated in ways that reduce the total levels of compensation required; injunctions against infringement should be issued only sparingly, and not as a matter of course, as was the case prior to the Supreme Court’s watershed 2005 decision in eBay v. MercExchange. The net effect of these combined maneuvers is to increase the cost of patents, which is likely to result in an increase in the size of the public domain relative to the areas of patented technology.

The question is whether this seismic shift is a good thing. As a member of Hoover’s Property Rights, Freedom, and Prosperity Task Force, I have long been on the opposite side the debate, not only in my academic work but also (full disclosure) as a lawyer who has worked for both DataTreasury and Qualcomm on a variety of projects that raise just these fundamental issues. What is strange about this debate is that, often times, the opposition to patents is put forward on the grounds that it will advance economic efficiency by eliminating the administrative costs and expensive disputes that always crop up in this area.

The underlying criticism is that this so-called “patent thicket” places serious obstacles in the path of many innovative companies by allowing a “patent troll” to obtain legal protection for innovations that they do not make, solely to block others from using that technology without first receiving a license from the firm that patents.

The troll objection is wildly overstated. There is nothing wrong with a firm that specializes in developing technologies for licensing to others. That is just a sensible form of market specialization, in which the force for innovation comes from one firm, often with a single idea and modest capital, which hopes to reap hefty profits by issuing non-exclusive licenses to companies that can then incorporate this patent into their business models. An attack on the division of labor seems bizarre, especially when launched in the name of economic efficiency.

Nor is there any obvious global sign of patent malaise in the software industry. Last I looked, the level of technological improvement in the electronics and software industries has continued to impress. The rise of the iPad, the rapid growth of social media, the increased use of the once humble cell phone as a mobile platform for a dizzying array of applications—these do not point to industries in their death throes. It may well be the case that a better patent system could have seen more rapid growth in technology.

What is so striking about Posner’s criticism, however, is that he does not offer any concrete example of how the current patent system has wreaked havoc on society. Moreover, he says nothing about the incredible success that a variety of pooling and licensing devices have had in spreading the use of patents through a wide range of standard setting organizations. Through their umbrella organization, the American National Standards Institute, these organizations have protested efforts embodied in a recent Federal Trade Commission report on the “Evolving IP Marketplace” to weaken their ability to secure rapid innovation and widespread compliance with major industry standards.

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How to Respond to the ACA Decision?

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by Publius
Posted July 31, 2012, 10:24 AM

Eric R. Claeys writes at National Review Online:

In NFIB v. Sebelius, handed down last month, the Supreme Court upheld the Patient Protection and Affordable Care Act (“Obamacare”) against several constitutional challenges. Constitutionalists — partisans of limited, constitutional government — now face a critical decision: Should they acquiesce in the Sebelius decision and move on to campaign against Obamacare exclusively on policy grounds? Or should they continue to make constitutional criticisms of Obamacare — and broaden those charges by making the Sebelius decision part of their indictment? Definitely the latter.

The Supreme Court took Sebelius in order to consider two important federalism questions. In one issue, not relevant here, Obamacare opponents challenged provisions expanding state requirements in relation to Medicaid. What is relevant here is that they also challenged the “individual mandate,” codified in 26 U.S.C. § 5000A. This provision imposes what the statute calls a “requirement” (effective 2014) that every U.S. citizen purchase adequate health-care coverage; anyone who fails to do so will incur what the statute calls a “penalty” of $750 (subject to inflation adjustments and exemptions).

The Court upheld the individual mandate. In a concurring opinion written by Justice Ginsburg, the Court’s four liberal justices (Ginsburg, Breyer, Sotomayor, and Kagan) made clear they would have preferred to uphold the mandate as an exercise of Congress’s powers to regulate interstate commerce. The Court’s conservative wing (in this case, Justices Scalia, Kennedy, Thomas, and Alito) dissented. They also treated the mandate as a commercial regulation, but they argued that the mandate exceeds the scope of Congress’s powers, both under the Commerce Clause and under the Necessary and Proper Clause.

 

Chief Justice Roberts delivered the judgment of the Court — and surprised many by upholding the mandate. Roberts (correctly) agreed with the dissenters that the mandate “cannot be sustained under a clause authorizing Congress to ‘regulate Commerce.’” After all, Congress does not really “regulate Commerce” as Article I requires when (in Roberts’s words) it “forces individuals into commerce precisely because they elected to refrain from commercial activity.” That reasoning should have led Roberts to find the mandate unconstitutional. Indeed, by some accounts, he did initially vote to hold the mandate unconstitutional. After the initial vote, however, he switched sides and wrote an opinion upholding the mandate as a constitutional exercise of Congress’s powers to tax.

To justify the mandate as a tax, Roberts made two major legal errors. First, he misread § 5000A when he classified it as a tax, and not a regulatory “requirement” backed up by a “penalty.” This misinterpretation was deliberate. Roberts expressly refused to say whether the tax reading was the “most natural interpretation” of § 5000A; he only said that the tax reading was “fairly possible.” Roberts applied such a weak interpretation of § 5000A because he wanted to avoid striking down the mandate if he could. Here, however, Roberts did not live up to a promise he had made during his confirmation hearings: to decide cases like an umpire. A good umpire would not apply one strike zone for batters from a small-market team and another for the New York Yankees. By the same token, the constitutional “judicial power” isn’t exercised as it ought to be when a judge departs from ordinary principles of statutory interpretation in order to conserve powers that the U.S. government has claimed for itself.

Even if the mandate had been drafted as a “tax,” it still should have been declared unconstitutional. The Constitution sorts taxes into income taxes, “indirect” taxes (like a duty on imports), and “direct” taxes (like a tax on real estate or a head tax). A tax on not doing something — here, not buying insurance — is best classified as a fancy variation on a head tax — a direct tax. But under Article I, a direct tax is unconstitutional unless levied state by state, in proportion to each state’s population at the most recent census. Since the $750 penalty isn’t apportioned on such a basis, it couldn’t have been constitutional even if it had been a tax. Roberts addressed this argument, but extremely quickly and unpersuasively.

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New SCOTUScast: Salazar v. Ramah Navajo Chapter

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by SCOTUScaster
Posted July 31, 2012, 7:39 AM

On June 18, the Supreme Court announced its decision in Salazar v. Ramah Navajo Chapter.  The case involved the federal Indian Self-Determination and Education Assistance Act, which allows Native American tribes to take over the administration of various federally funded educational and social service programs, and to receive payment for the cost of doing so.  At issue was whether the government must pay those costs when Congress appropriates funds sufficient to pay in full any individual contractor, but not sufficient to cover the aggregate amount due to every contractor.  

In an opinion delivered by Justice Sotomayor, the Court held by a vote of 5-4 that the federal government must pay the support costs of each tribe in full.  Justices Scalia, Kennedy, ,and Kagan joined the majority opinion.  Chief Justice Roberts filed a dissenting opinion, which was joined by Justices Ginsburg, Breyer, and Alito.

To discuss these cases we have Tom Gede, a commissioner on the Indian Law and Order Commission and of counsel with Bingham McCutchen.  

Click here to view this article on the source site »

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NYPD To Launch “Domain Awareness System” to Track Criminals, Potential Terrorists

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by Publius
Posted July 30, 2012, 5:01 PM

MyFoxNY reports:

The NYPD says it will launch an all-seeing "Domain Awareness System" that combines several streams of information to track both criminals and potential terrorists.

Police Commissioner Raymond Kelly says the city developed the software with Microsoft.  

The program combines city-wide video surveillance with law enforcement databases, according to Kelly.

The Domain Awareness System will include technology deployed in public spaces as part of the counterterrorism program of the NYPD counterterrorism bureau, including: NYPD-owned closed circuit television cameras, license plate readers, and other undisclosed domain awareness devices.

Kelly said the system will be officially unveiled by Mayor Michael Bloomberg sometime this week. Commissioner Kelly announced the program before an audience at the Aspen Security Forum in Aspen, Colo. over the weekend.

The NYPD has been heavily criticized for using surveillance in Muslim communities and partnering with the Central Intelligence Agency to track potential terror suspects.

Muslim groups have protested and sued to stop the NYPD programs.

Kelly says the policies were essential to halting 14 terrorism plots against the city since the attacks of Sept. 11, 2001.

In April 2012, former Secretary of Homeland Security Michael Chertoff delivered an address on "National Security After U.S. v. Jones" at FedSoc's 2012 National Security Symposium.  Among other subjects, he discussed the pros and cons of widespread electronic surveillance. You can watch a video of his talk here.

 

Second Circuit Upholds Buffalo Firefighter Test

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by Publius
Posted July 30, 2012, 4:18 PM

According to Thomson Reuters:

The city of Buffalo, New York, did not discriminate against African-Americans with the test it used to promote firefighters, a federal appeals court has ruled.

Although black firefighters generally had a lower pass rate than their white counterparts, Buffalo demonstrated that the test assessed the necessary skills for the job of fire lieutenant, the 2nd U.S. Circuit Court of Appeals found in a 2-1 decision.

"(W)e conclude that the district court had sufficient evidence to make a preponderance finding that Buffalo's use of that test to promote firefighters to the rank of fire lieutenant was job related and consistent with business necessity," U.S. Circuit Court Judge Reena Raggi wrote for the majority, which also included Judge John Walker.

The appeal consolidated two lawsuits filed by Men Of Color Helping All Society Inc, or MOCHA, a fraternal organization representing African-American firefighters in Buffalo. The lawsuits alleged that the city violated Title VII of the Civil Rights Act by administering promotional tests in 1998 and 2002 that were racially discriminatory.

MOCHA said that African-Americans passed the test at lower rates than their white counterparts -- 43 percent compared to 76 percent. As a result, African-Americans were underrepresented in the Buffalo Fire Department's upper ranks, MOCHA argued.

Buffalo countered that the test, which had been designed by the New York State Civil Service Department, was a valid assessment of the skills, knowledge, ability and personality traits needed to succeed as a fire lieutenant, according to the ruling.

The Western District of New York court dismissed both complaints, in 2010 and 2011, respectively. Plaintiffs had shown that the test had a disparate impact on African-American test takers, but the fire department demonstrated that the test addressed the necessary requirements for the job, the ruling said.

The 2nd Circuit majority agreed.

Discussing a similar lawsuit regarding the city of New Haven, in 2009 Roger Clegg published a FedSoc white paper titled "The Obama Administration, the New Haven Firefighters Case, and More."

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Justce Scalia Opens Door for Gun-Control Legislation

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by Publius
Posted July 30, 2012, 11:21 AM

According to Fox News:

Supreme Court Justice Antonin Scalia said  Sunday the Second Amendment leaves open the possibility of gun-control legislation, adding to what has become a slow-boiling debate on the issue since the Colorado movie theater massacre earlier this month.

Scalia, one of the high court’s most conservative justices, said on “Fox News Sunday” that the majority opinion in the landmark 2008 case of District of Columbia v. Heller stated the extent of gun ownership “will have to be decided in future cases.”

“We’ll see,” he said.

Scalia’s  comments follow the July 20 massacre at the Aurora, Colo., movie theater in which the alleged gunman, with the help of a semi-automatic weapon and an ammunition clip that could hold as many as 100 rounds, killed 12 and wounded 59 others.

His comments also follow those of lawmakers who have called for tougher gun-related laws in the wake of the shootings – most recently New Jersey Sen. Frank Lautenberg and New York Rep. Carolyn McCarthy, Democrats who said Sunday they will introduce legislation this week to “make it harder for criminals to anonymously stockpile ammunition through the Internet, as was done before the recent tragic shooting in Aurora, Colorado.”

They are scheduled to announce the bill to the public Monday outside City Hall in New York City.

New York City Mayor Michael Bloomberg, a Republican turned independent, has been among the most vocal on the issue since the mass shooting.

On Friday, Bloomberg in an editorial for his Bloomberg News, suggested the problem in Washington is that lawmakers do not want to vote for tougher gun laws out of fear of retribution from the powerful National Rifle Association.

The editorial was titled “How to Break NRA’s Grip on Politics” and suggested the political impact of the group might be exaggerated.  

“In Congress, the NRA threatens lawmakers who fail to do its ideological bidding, although its record in defeating candidates is much more myth than reality,” the editorial stated.

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Health Insurance Mandate Faces Huge Resistance in Oklahoma

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by Publius
Posted July 30, 2012, 9:16 AM

The Washington Post reports:

The Supreme Court may have declared that the government can order Americans to get health insurance, but that doesn’t mean they’re going to sign up.

Nowhere is that more evident than Oklahoma, a conservative state with an independent streak and a disdain for the strong arm of government. The state cannot even get residents to comply with car insurance laws; roughly a quarter of the drivers here lack it, one of the highest rates in the country.

When it comes to health insurance, the effort to sign people up isn’t likely to get much help from the state. Antipathy toward President Obama’s signature health-care overhaul runs so deep that when the federal government awarded Oklahoma a large grant to plan for the new law, the governor turned away the money — all $54 million of it.

The idea that the federal government will persuade reluctant people here to get insurance elicited head-shaking chuckles at Cattlemen’s Steakhouse, an iconic old restaurant in the Stockyards City neighborhood, which is lined with street banners reading “Where the Wild West still lives.”

“That kind of frontier mentality maintains in Oklahoma, and it’s not a bad thing. It’s a good thing,” said Mark Cunningham, 64, an Army veteran having breakfast with a couple of friends in a dimly lighted booth recently. Considering the car insurance statistic, he said, “I suspect they’re going to run into the same kind of trouble on health insurance.”

Although Obama’s health-care overhaul cleared a major hurdle last month when it was upheld by the Supreme Court, the government continues to face challenges as it implements the largest social program in decades. Among the biggest is the resistance, both personal and political, that officials face as they try to achieve the law’s most ambitious goal — ­extending health coverage to 30 million uninsured Americans.

That includes people who will become newly eligible for Medicaid coverage and others who can buy insurance through new state exchanges. Beginning in 2014, most Americans will be required to get health coverage or face a fine come tax time. But it will not be a simple task to get so many people to purchase coverage, and the Congressional Budget Office estimates that, for a variety of reasons, fewer than half of the 30 million will actually gain coverage in that first year.

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Senate Showdown Coming for Appellate Judicial Nominees

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by Publius
Posted July 27, 2012, 4:41 PM

BLT: The Blog of Legal Times reports:

A showdown on the confirmation vote of a federal appellate judicial nominee, scheduled for Monday, could be a pivotal moment for how many appeals court bench spots the Senate will fill during the rest of this year.

Majority Leader Sen. Harry Reid (D-Nev.) is forcing a vote Monday afternoon on Robert Bacharach, of Oklahoma, for the U.S. Court of Appeals for the Tenth Circuit, a nominee considered to be highly qualified and noncontroversial. The move is a direct challenge to Republicans who have leaked plans that they will block all circuit court judges for the rest of the presidential election year.

But it is also Reid's only option for moving forward on the circuit court nominees this congressional session, as Republicans cite a loosely defined Senate tradition of backing off from filling circuit court seats in the waning months of a president's term, dubbed "The Thurmond Rule."

If Reid succeeds in getting enough Republicans votes to overcome the filibuster, it could pave the way for other noncontroversial circuit court nominees awaiting confirmation this year, including William Kayatta, Jr., of Maine for the U.S. Court of Appeals for the First Circuit, and Richard Taranto, nominated to the Federal Circuit.

If Reid does not succeed, it would suggest Minority Leader Mitch McConnell (R-Ky.) has party members in line to solidify a freeze on any circuit court confirmations until next Congress, nomination watchers say.

"I think the spotlight is more on McConnell than it is on Reid," said Russell Wheeler, a Brookings Institution fellow who has watched federal judicial nominations for decades. "It's a real test of McConnell's control of his caucus."

And, of course, there could be a deal worked out before Monday afternoon's vote. In March, on the verge of a series of cloture votes on nominees, Reid and McConnell agreed to hold confirmation votes for 12 district court and two circuit court nominees at a rate of about two per week.

The Senate has confirmed district and circuit court judges at a rate of about one per week so far this year. There are 20 nominees who have been approved by the Senate Judiciary Committee, all but four on essentially unanimous voice votes, and await a vote on the Senate floor.

The Senate is only in session for 15 more weeks this year, including next week, the last before a four-week summer break that ends Sept. 10.

Last month, the American Bar Association sent a letter to Senate leaders expressing a "grave concern" for the high number of longstanding federal judicial vacancies. The group urged floor votes on three noncontroversial appellate court nominees last month.

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British Bomb Joke Tweeter Wins Landmark Ruling

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by Publius
Posted July 27, 2012, 12:38 PM

According to the Independent:

The man who was found guilty of sending a menacing message on the internet site Twitter after he joked about blowing an airport 'sky high' has had his conviction quashed in a case which will have implications for the way online communication is dealt with by the courts.

Comedians and television presenters flocked to support Paul Chambers, 28, after he was charged in relation to the tweet, which he sent to his 600 followers in January 2010. He said he was frustrated that Robin Hood Airport was closed due to bad weather because he wanted to get to see his now fiancée.

Broadcaster Stephen Fry welcomed the 'complete vindication and victory' for Mr Chambers following today's ruling. Al Murray, who also supported Mr Chambers, wrote on Twitter: "He's won," before adding: ”Colossal relief here in court. Short and sweet."

Mr Chambers and his supporters argued that messages sent in jest, regardless of the subjective view of the appropriateness or quality of their humour, should be taken as such and that to regard any joke about subjects such as bombings would not be a correct interpretation of the Malicious Communications Act 2003, under the provisions of which Mr Chambers was originally convicted in 2010.

They said that to interpret jokes about such subjects as serious, threatening messages would be a dangerous precedent to set. Today, Lord Chief Justice Lord Judge, sitting with Mr Justice Owen and Mr Justice Griffith Williams in the High Court, said: "We have concluded that, on an objective assessment, the decision of the Crown Court that this 'tweet' constituted or included a message of a menacing character was not open to it.

"On this basis, the appeal against conviction must be allowed."

The message Mr Chambers sent read: "Crap! Robin Hood Airport is closed. You've got a week and a bit to get your shit together, otherwise I'm blowing the airport sky high!!" He said he never thought anyone would take his 'silly joke' seriously.

Speaking after the ruling, he said: "I am relieved, vindicated - it is ridiculous it ever got this far. I want to thank everyone who has helped, including everyone on Twitter."

His counsel, John Cooper QC, had told the judges it was obvious the tweet, which was sent by someone who did not hide his identity, was a joke.

It was certainly not sent in the context of terrorism and it was wrong for the Crown Court to make such an association.

He said: "If that be the case, and I don't mean to be flippant, John Betjeman would be concerned when he said 'Come, friendly bombs, and fall on Slough', or Shakespeare when he said 'Let's kill all the lawyers'."

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New SCOTUScast: Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak

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by SCOTUScaster
Posted July 27, 2012, 9:24 AM

On June 18, the Supreme Court announced its decision in Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak (consolidated with Salazar v. Patchak).  This case considered whether an individual may file suit to challenge the federal government’s placement of land into a trust for use by Indian tribes.  The Court faced the question whether the United States had waived its sovereign immunity from suit, and if so, whether the individual had standing to pursue his claims.  

In an opinion delivered by Justice Kagan, the Court held 8-1 that the United States had indeed waived sovereign immunity and that the plaintiff did have prudential standing to challenge the government placement of land into trust for use by Indian tribes.  Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, Ginsburg, Breyer, and Alito joined Justice Kagan’s opinion.  Justice Sotomayor filed a dissenting opinion.  

To discuss these cases we have Tom Gede, a commissioner on the Indian Law and Order Commission and of counsel with Bingham McCutchen.  

Click here to view this article on the source site »

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Rahn Emanuel Looks to Block Chick-fil-A in Wake of CEO’s Opposition to Same-Sex Marriage

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by Publius
Posted July 26, 2012, 2:09 PM

The Chicago Sun-Times reports:

The anti-gay views openly espoused by the president of a fast food chain specializing in chicken sandwiches have run afoul of Mayor Rahm Emanuel and a local alderman, who are determined to block Chick-fil-A from expanding in Chicago.

“Chick-fil-A’s values are not Chicago values. They’re not respectful of our residents, our neighbors and our family members. And if you’re gonna be part of the Chicago community, you should reflect Chicago values,” Emanuel said Wednesday.

“What the CEO has said as it relates to gay marriage and gay couples is not what I believe, but more importantly, it’s not what the people of Chicago believe. We just passed legislation as it relates to civil union and my goal and my hope … is that we now move on recognizing gay marriage. I do not believe that the CEO’s comments … reflects who we are as a city.”

Ald. Joe Moreno (1st) is using the same argument to block Chick-fil-A from opening its first free-standing restaurant in Chicago’s Logan Square neighborhood.

Chick-fil-A already has one Chicago store — at 30 E. Chicago near Loyola University’s downtown campus.

“Same sex marriage, same-sex couples — that’s the civil rights fight of our time. To have those discriminatory policies from the top down is just not something that we’re open to. …We want responsible businesses,” Moreno said.

“If he’s in the business of selling chicken in Chicago, he should be in the business of having equal rights for everyone. Period …. If it looks like a chicken, talks like a chicken, walks like a chicken, it’s a chicken. If you’re saying you don’t respect the values and rights of same-sex couples, that trickles down through the organization. … That’s paramount to the way the company behaves.”

Don Perry, vice president of corporate public relations for Chick-fil-A, and senior manager Jerry Johnston could not be reached for comment on the opposition from the mayor and Moreno.

Chick-fil-A has already obtained zoning approval to build a restaurant in the 2500 block of North Elston. But, the company still needs City Council approval to divide the land and purchase a lot near Home Depot.

Chick-fil-A President Dan Cathy was quoted last week as saying he was “guilty as charged” for supporting, what he called the “biblical definition” of marriage as between a man and a woman.

“We are very much supportive of the family — the biblical definition of the family unit. We are a family-owned business, a family-led business, and we are married to our first wives. We give God thanks for that,” Cathy was quoted as saying.

Appearing on the Ken Coleman Show, Cathy was further quoted as saying, “I think we’re inviting God’s judgment when we shake our fist at him, you know, [saying], ‘We know better than you as to what constitutes a marriage.’ And I pray on God’s mercy on our generation that has such a prideful, arrogant attitude to think that we would have the audacity to try and redefine what marriage is all about.”

Cathy’s comments have infuriated gay rights activists across the nation, prompting their political allies to take a stand against the company.

Boston Mayor Thomas Menino has said Chick-fil-A “doesn’t belong in Boston” because of Cathy’s discriminatory stance.

On Wednesday, the tag team of Emanuel and Moreno joined the chorus, citing Cathy’s anti-gay views. The only question is whether they have a legal leg to stand on.

“Absolutely not,” said former Ald. William Banks (36th), the longtime chairman of the City Council’s Zoning Committee who presided over a massive re-write of the city’s 1957 zoning ordinance.

“Any alderman can hold a development issue for virtually any purpose. But if he’s doing it for the wrong reasons — if he’s citing a gay rights issue — there’s nothing illegal about that.”

Moreno said he has an ace in his back pocket if he runs into legal trouble: traffic and congestion issues caused by the store that have been the subject of behind-the-scenes negotiations for the last nine months.

 

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Justice Scalia Disputes Accuracy of “Leak”

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by Publius
Posted July 26, 2012, 8:57 AM

NPR summarizes Nina Totenberg's recent interview of Justice Scalia:

Supreme Court Justice Antonin Scalia, influential conservative and pugilistic dissenter, is challenging everything from a recent leak about Supreme Court deliberations, to conventional wisdom about the court and its history.

In a new book co-authored with Bryan Garner, Scalia spells out his judicial philosophy, and on Tuesday, the always voluble, charming and combative justice sat for a wide-ranging interview — about the book, his relationships on the court, and the recent leak alleging anger among the justices over the recent health care decision.

First, the leak. Citing unnamed sources with knowledge of the court's internal deliberations, CBS reported that Chief Justice John Roberts had changed his mind while considering the health care case, and that his reversal infuriated the four other court conservatives, who dissented.

Scalia, however, disputed any notion that the decision sparked anger and acrimony inside the court.

"That's just not the way justices of the Supreme Court behave, going into pouts. I mean that — it's absurd," he said. "If you can't disagree even vehemently on the law without taking it personally and getting angry at the person, you ought to look for another job." As if to prove the point, Scalia added that his "best friend on the court is Ruth Bader Ginsburg, and God knows she doesn't vote my way much of the time."

The justice refused to discuss the court's internal deliberations, but added pointedly, "You shouldn't believe this stuff that you read in the press [about internal deliberations]. It's either made up or comes from an unreliable source."

Asked if he had ever changed his mind, Scalia replied, "Many, many times."

"I remember at least one case where I was assigned the opinion and ended up writing it the other way," he said. "I had to tell my colleagues, 'I'm sorry, it just wouldn't write. ... The law wasn't there."

 

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Voter ID Challenge Goes to Court in Pennsylvania

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by Publius
Posted July 25, 2012, 3:10 PM

The Washington Post reports:

The first round of the 2012 election is being waged in courtrooms across the country, and those challenging a wave of tough voter identification laws are finding state courts a more hospitable environment than the traditional civil rights venue of the federal courthouse.

Perhaps the most important challenge got underway Wednesday in the swing state of Pennsylvania, where opponents of a new law requiring IDs told a state judge that the commonwealth’s constitution forbids such a restriction.

“Under the case law and the express terms of the Pennsylvania Constitution, it is doubtful that there is any governmental interest that can justify depriving voters of their constitutional right,” said a brief filed on behalf of 10 individuals and groups such as the NAACP and League of Women Voters.

The strategy of filing challenges in state court has succeeded in Missouri and Wisconsin, where judges have relied on voting rights protections enshrined in state constitutions to block laws requiring voters to present photo identification.

Voting rights advocates are scrambling to fight a rush of state voting law changes adopted over the past two years that, among other changes, curtail the availability of early voting and impose new requirements on voter registration efforts.

Most attention has been focused on requirements that voters show photo identification, a measure that strikes many people as a common-sense notion that voters prove they are who they say they are. Many states require some method of identification, but 10, including Pennsylvania, have passed laws requiring specific kinds of government-issued IDs.

Sponsors say the laws are needed to combat voter fraud and assure the public that only qualified voters will have their ballots counted. But evidence of the kind of voting fraud the laws would discourage is elusive; Pennsylvania concedes it cannot prove any.

And opponents say the laws fall disproportionately on minorities, the poor and the elderly, who even in a modern world sometimes lack both photo identification and the legal documents and means that would allow them to obtain it.

The groups challenging the Pennsylvania law, as well as other advocacy organizations such as the Senior Law Center, say they can present numerous voters who would have trouble securing out-of-state birth certificates, paying the cost of other documents or traveling to state offices to get the photo IDs.

At FedSoc's 2011 National Lawyers Convention, the Free Speech & Election Law Practice Group hosted a panel on "Voter Fraud and Voter ID — The Constitution and the Right to Vote."  The line-up comprised:

  • Mr. John Fund, Former Columnist, The Wall Street Journal and Opinionjournal.com
  • Prof. Spencer A. Overton, Professor of Law, The George Washington University Law School
  • Prof. Daniel P. Tokaji, Professor of Law, The Ohio State University, Moritz College of Law and and Senior Fellow of Election Law @ Moritz
  • Mr. Hans von Spakovsky, Senior Legal Fellow and Manager, Civil Justice Reform Initiative, The Heritage Foundation
  • Moderator: Hon. Thomas B. Griffith, U.S. Court of Appeals, D.C. Circuit

You can watch the full video here.

Will Supreme Court Nominees Get Younger?

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by Publius
Posted July 25, 2012, 11:05 AM

The ABA Journal reports:

Voters won’t be punching chads or hitting touch screens with the names of U.S. Supreme Court nominees on Nov. 6. But with three justices in their late 70s and a fourth in his mid-70s, chances are strong that a second-term Barack Obama or a first-term Mitt Romney will have the opportunity to nominate one or more replacements. Already, many in legal and political circles have drawn up lists of potential nominees.

“The Supreme Court is essentially going to be on the ballot this November,” says Margery F. Baker, executive vice president of People for the American Way, a liberal group based in Washington, D.C. “We want to make sure people understand the stakes.”

Clint Bolick, a conservative legal activist at the Goldwater Institute in Phoenix, says that “justices long outlive the presidential administrations during which they are named. It is truly the most lasting legacy a president can have.”

Bolick is the author of a new book, Two-Fer: Electing a President and a Supreme Court. He notes that not since Clarence Thomas succeeded Thurgood Marshall on the court in 1991 has there been a case of a liberal being replaced by a conservative or vice versa.

“The shift of a single justice could tilt the court’s balance sharply to the left,” Bolick writes of a possible Obama second term. Of course, a Romney presidency could mean solidifying the court’s conservative majority for years to come.

But a number of factors could combine to make the future of the high court a more salient issue this fall.

During President Obama’s term, the Supreme Court has issued divisive opinions on campaign finance, the Affordable Care Act and state immigration measures, and the president has not shied away from making the court an issue. Meanwhile, the court’s next term already includes a high-wattage case on affirmative action in higher education, and it could bring cases dealing with another hot-button issue: gay marriage.

“Because of what some people see as political decisions by the court, and the impact that its decisions can have on their lives, I think it’s a different landscape this year,” says Baker of People for the American Way. The group has launched a website aimed at drawing attention to Romney’s potential impact on the court.

For example, Romney chose Robert H. Bork, the controversial high court pick of President Ronald Reagan whose nomination was defeated in 1987, as a judicial adviser during the heat of the Republican primary last year, at a time he was striving to establish his bona fides with conservatives. So the PFAW site, RomneyCourt.com, imagines the potential impact of Romney picking Bork for the court.

Romney’s campaign says that if elected, the Republican will nominate people in the mold of the court’s four more conservative members: Chief Justice John G. Roberts Jr. and Associate Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. (swing Justice Anthony M. Kennedy is pointedly not mentioned).

But the role of Bork might be vulnerable to attack from the Obama campaign. “And it may not be something that appeals to independent voters,” says Adam Winkler, a liberal-leaning law professor at the University of California at Los Angeles.

Curt Levey, the president and executive director of the Committee for Justice, a D.C.-based conservative group focused on judicial nominations, says that if Romney is elected, Bork won’t be taking a full-time job in the White House advising the president on court picks.

“At the end of the day, other than symbolically, the fact that Bork is on [Romney’s judicial advisory panel] is not going to make a difference,” Levey says.

With two Supreme Court nominations under his belt, Obama has a more direct record on the issue, observers note. Sonia Sotomayor and Elena Kagan represented a commitment to greater ethnic and gender diversity while also bringing moderate, but not stridently liberal, views.

Putting aside basic qualifications such as relevant legal experience, the top consideration for Supreme Court nominees these days is age, observers say. The sweet spot will be 45 to 55 years old. Justice Ruth Bader Ginsburg, at age 60 when she was nominated in 1993, was the last to join the court having hit that milestone, although Harriet Miers was 60 in 2005 when President George W. Bush nominated and later withdrew her name amid a revolt among conservatives in his party.

“If you’ve been on the [potential nominees] list already, you are unlikely to still be on that list” when the next seat comes open, Winkler says. “The only certainty about the next Supreme Court pick is that he or she will be young.”

Supreme Court litigator Tom Goldstein, publisher of SCOTUSblog, says that “Republicans in particular really value youth [for high court picks]. I don’t see them putting up someone older than 53 at nomination.”

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