November 2009

  • November 11, 2009

    Adam Liptak revisits a recent discussion between Supreme Court Justices Stephen Breyer and Antonin Scalia, which included debate over methods of interpreting the Constitution. During an event at the University of Arizona, Scalia defended "originalism" as the proper way to interpret the Constitution and Breyer countered that the Constitution would likely prove useless in today's society if it were so rigidly interpreted. Liptak maintained in his article that the two "know how to get under each other's skin, and they punctuated their debate with exasperation, eye-rolling and venomous sarcasm." (C-SPAN has video of the debate here.)

    But what really irks Scalia and other supporters of his brand of originalism, is, Liptak reports, discussion of Brown v. Board of Education, the high court decision that concluded that school segregation violated the 14th Amendment. Brown, Liptak writes, is "hard to square with Justice Scalia's commitment to originalism, the theory of constitutional interpretation that says judges must apply the original understanding of the constitutional text." 

    Liptak continued:

    Brown presents originalists with a problem. The weight of the historical evidence is that the people who drafted, proposed and ratified the 14th Amendment from 1866 to 1868 did not believe themselves to be doing away with segregated schools.

    Yet Brown is widely thought to be a moral triumph. A theory of constitutional interpretation that cannot account for Brown is suspect if not discredited.

    As Liptak reported, not too long into their discussion at the University of Arizona, Breyer prodded Scalia to square originalism with the outcome of Brown.

    "Where would you be with school desegregation?" Breyer asked Scalia.

    But Scalia, Liptak reports, failed to provide a direct answer and instead turned his attention to the earlier high court decision in Plessy v. Ferguson, saying he would have sided with the dissent in that case. The majority in Plessy ruled that legalized segregation did not violate the Constitution.

    Breyer maintains, as he did during the Arizona debate, that the words of the Constitution, if they are to have relevance today, cannot be interpreted in the framework of the 18th century. In a 2007 dissent in Parents Involved v. Seattle School District 1, Justice Breyer wrote:

    For much of this Nation's history, the races remained divided. It was not long ago that people of different races drank from separate fountains, rode separate buses, and studied in separate schools. In this Court's finest hour, Brown v. Board of Education challenged this history and helped to change it. For Brown held out a promise. It was a promise embodied in three Amendments designed to make citizens of slaves. It was the promise of true racial equality - not as a matter of fine words on paper, but as a matter of everyday life in the Nation's cities and schools. It was about the nature of a democracy that must work for all Americans. It sought one law, one Nation, one people, not simply as a matter of legal principle but in terms of how we actually live.

    In their book, Keeping Faith with the Constitution, published by ACS earlier this year, authors Goodwin Liu, Pamela Karlan and Christopher Schroeder write in Chapter Three:

    The unanimous Brown opinion authored by Chief Justice Earl Warren provides a rich account of constitutional interpretation and the meaning of equality as a constitutional value. What stands out in the Court's reading of the Fourteenth Amendment is its explicit rejection of originalism in favor of an interpretative approach sensitive to historical change and social context. Through Brown, we come to understand the constitutional equality not as an abstract formula or a narrow idea limited to by history, but as a moral principle that guides our public values and responds to the lived reality of contemporary social practices.

    See more from Keeping Faith here.

  • November 10, 2009

    The executive summary of a new report on how to close the military prison at Guantanamo Bay opens, "The process for closing Guantanamo has not gone as smoothly as the Obama administration had hoped." Indeed.

    But hope is not lost for advocates of closing the infamous facility. The report, by Ken Gude of the Center for American Progress, charts the path from today to a day when there will be no prisoners remaining at Guantanamo.

    CAP summarizes Gude's recommendations as follows:

    * Push back the closure deadline to July 2010. * Prosecute 9/11 conspirators in federal court and limit military commissions to battlefield crimes. * Limit military detention only to enemy fighters captured in combat zones and use criminal law to prosecute detainees captured far from any battlefield. * Incarcerate detainees convicted in U.S. criminal courts in maximum-security U.S. prisons and transfer those who will remain in military custody to Bagram prison in Afghanistan.
    You can read more and download the full report here.
  • November 10, 2009
    Guest Post

    By Joshua D. Sarnoff, professor and associate director, Glushko-Samuelson Intellectual Property Law Clinic, Washington College of Law, American University. Professor Sarnoff also blogs at InherentlySarnoff, where the article is cross-posted. Professor Sarnoff also authored an amicus brief in Bilski, which is available here.

    Here are my thoughts on the Bilski v. Kappos oral argument held yesterday, which is better informed by also having watched Pamela Samuelson, John Duffy, Kevin Collins, and John Whealan discuss the argument late yesterday afternoon at George Washington University. The argument was fascinating, and the Justices were very well prepared and were a very hot bench (particularly Justice Sotomayor).

    Surprisingly, but from my perspective happily, Justice Scalia focused very early into the Petitioner's argument on the "useful arts" language from the Constitution (or on similar language from early patentable subject matter statutes -- "new and useful art" -- as Justice Scalia did not explicitly reference the Constitution) and whether patent eligible inventions must fall within manufacturing and similar industries. Michael Jakes did a very good job responding - and holding his ground when pushed under substantial questioning from many Justices to define a limit to what qualifies as patent eligible - by adverting to examples of patentable business inventions from his brief and reasons why "technologies" have and should continue to be viewed broadly and why the patent system is not limited to traditional industrial inventions. Jakes to his credit (and as a testament to zealous advocacy on behalf of a client with a possibly losing position) also refused to provide any helpful response to the Justices when pressed to offer a fall-back position in case his basic position was rejected. This was particularly notable in his responses to Justice Breyer's repeated requests for more guidance, after Justice Breyer clearly signaled that the Court might not agree that patentable subject matter is as broad as Jakes was arguing. Justice Roberts also pressed Jakes on the issue of why Claim 1 was not merely an abstract idea, and Justice Stevens pressed Jakes on the difference of the claim at issue from that in Diehr (particularly in regard to its physicality). Jakes made clear why he believed his clients' claim was both practical and physical, focusing in particular on the step of entering into transactions. He also articulated why his clients are entitled to have their claim reviewed on the other patentability criteria, although some of the Justices may believe that the claim also may not be new or at least is obvious. Although his clients' invention provided little in the way of physicality like that of traditional industrial processes, Jakes nevertheless presented a strong (maximalist) approach to patentable subject matter to justify treating the invention as potentially eligible, the scope of which appeared to be limited only by the Court's historic, articulated exclusions for science, nature, and abstract ideas (understood narrowly but applied to all four categories of statutory subject matter, i.e., processes, machines, manufactures, and compositions of matter). Thus, when pressed by Chief Justice Roberts, Jakes argued that an alphabet could be patented, which led to an unproductive exchange with Justice Sotomayor about Morse's code claim, which was in fact found patentable as Jakes articulated but which raises unanswered questions of claim interpretation regarding how closely "tethered" that claim was to Morse's apparatus. This argument may not have been the best strategic choice by Jakes, as his clients' position could readily have been sustained without trying to uphold alphabet patents. Curiously, Jakes also argued that the Bell telephone patent would not pass the Federal Circuit's transformation test, which led to an unproductive exchange with Justice Scalia about whether the Bell telephone patent involved a physical transformation (of sound into electrical signals and back again). Jakes also conceded (at no cost to his clients' position) that mental processes and data (by itself), literature and fine arts are not patentable subject matter.

  • November 10, 2009

    Applications are now being accepted for the 2010 ACS David Carliner Public Interest Award. The award recognizes outstanding mid-career public interest lawyers whose work best exemplifies its namesake's legacy of fearless, uncompromising and creative advocacy on behalf of marginalized people, with a $10,000 cash prize and an award presented at ACS's National Convention in Washington, D.C.

    Applicants must have graduated from law school between May, 2000 and May, 2005; have demonstrated a passionate commitment to public interest law throughout their career and be employed at a nonprofit organization, government entity, or law firm whose mission supports and furthers the causes for which David Carliner (pictured) stood; and receive an annual salary of $110,000 or less. Applicants must submit a completed cover sheet accessible here; a resume or CV; an essay of no more than 1500 words double spaced setting forth their qualifications for the award and including a statement that the applicant's annual salary is $110,000 or less; and a letter of recommendation from a person familiar with the applicant's work and the criteria for the Award. Applications must be received by 6:00 p.m. Eastern Time, Monday, February 1, 2010.

  • November 9, 2009
    Guest Post

    By Helen Wong, former president of the ACS student chapter at Georgetown Law

    As the debate over health care reform continues, the question of whether an individual mandate to purchase health insurance is constitutional has been termed "the elephant in the room" by conservative pundits across the country. If so, this is definitely an elephant that has gotten significant attention. Bush administration attorneys, David Rivkin and Lee Casey, wrote not one, but two editorials in The Washington Post and The Wall Street Journal arguing that a health insurance mandate would exceed the power granted to Congress by the Constitution.

    Opponents of the health care reform point to two main arguments for why such a mandate would be unconstitutional. First, they argue that Congress lacks constitutional authority to compel people to purchase health insurance. Second, they maintain that Congress lacks the power to levy a tax against those who do not purchase health insurance or that such a tax would be considered an "arbitrary and capricious taking under the Fifth Amendment."

    But the opponents are wrong on both counts. Congress does have authority to pass a health insurance mandate under the Commerce Clause enumerated under Article 1, Section 8, of the Constitution. Since the 1930s, the Supreme Court has interpreted the Commerce Clause to mean that Congress has the authority to regulate activities that have a substantial effect on interstate commerce. "Substantial effect" can be found on individual decisions that, in the aggregate, would affect interstate commerce. In Wickard v. Filburn, Filburn had violated wheat production quotas because he was growing extra wheat for personal consumption. The Court found that his actions, though minimal, would affect interstate commerce because it would reduce the amount of wheat he would need to purchase on the open market. More recently in Gonzales v. Raich, the Supreme Court found that "Congress could use its commerce clause authority to prohibit individuals from cultivating and possessing small amounts of marijuana for personal medicinal use because marijuana is bought and sold in interstate commerce."