November 2010

  • November 3, 2010
    The California ballot measure aimed at legalizing the use of marijuana for adults 21 and older went down to defeat, but proponents are not giving up the fight, or showing overwhelming dejection.

    Stephen Gutwillig, director of the Drug Policy Alliance that spearheaded the Proposition 19 movement, told the Los Angeles Times, "This has been a watershed moment. Even in defeat, Proposition 19 has moved marijuana legalization into the mainstream of American politics." He continued that supporters of legalization would push ballot measures in 2012 in "Washington, Oregon, Colorado and very likely California."

    The newspaper also noted, "More than four decades after the war on drugs was declared, the country is almost evenly divided on whether to legalize marijuana. (Although Gil Kerlikowske, head of the White House Office of National Drug Control Policy has said that it is time for the nation to move beyond the so-called "War on Drugs," he did oppose Proposition 19.)

    Josh Harkinson, blogging for Mother Jones on yesterday's vote, wrote:

    As 4:20 faded into the late afternoon, it became clear that Prop 19 was headed for defeat. Even so, pot activists still had reason enough to party. Their campaign has taken legalization debate mainstream, and they'll all probably try again in 2012. They gathered in a parking lot outside Oaksterdam University, the cannabis cultivation school owned by Richard Lee, Prop 19's biggest financial backer. Pot smoke occasionally wafted through the air, and there wasn't a cop in sight who gave a damn.

    The Atlantic's Andrew Sullivan has more reaction to the outcome over the ballot measure here.

  • November 3, 2010

    Seth Stern, co-author of the recently published biography Justice Brennan: Liberal Champion, shared his insights about the influential justice with ACSblog in an interview. Stern, who is a lawyer and legal reporter for Congressional Quarterly, was brought into the long-term project four years ago. A number of years before, Brennan had given Stern’s co-author, American University law professor Stephen Wermiel, exclusive permission to write his biography, giving Wermiel exclusive access to the Justice’s papers and sitting for more than 60 hours of interviews. Stern reviewed these materials and also conducted additional research, in joining with Wermiel to complete the book.

    In this video podcast interview, Stern addresses a number of different topics, including why Brennan remains such an appealing figure to many lawyers and law students today, the Justice’s role in the continuing debates over constitutional interpretation, Brennan’s role as both a consensus builder and a caustic dissenter, how Justice Brennan’s success might have been affected if he sat on today’s divided court with its conservative majority, and the tension between Brennan’s personal life and judicial philosophy.

    As he comments, Brennan’s philosophy was “the opposite of the critique of liberal activism—that liberal judges read their personal preferences into the Constitution. At least with Justice Brennan you have to draw a line between what his personal preferences might have been and … his legal or philosophical preferences. But he certainly wasn’t reading his personal predilections into the Constitution.”

    To watch the interview, click the picture below or here, to download the interview as a podcast. To download or listen to an earlier two part interview with Stern’s co-author, Stephen Wermiel, click here and here. To read an ACS Book Talk in which the authors discuss their work, click here

  • November 2, 2010
    Guest Post

    By Richard M. Zuckerman. Mr. Zuckerman is a litigation partner in the New York office of SNR Denton US LLP. Mr. Zuckerman was counsel for several amici curiae in Schwarzenegger v. EMA.
    Three issues permeated oral argument in the Supreme Court on whether to uphold California's law making it a crime to give or sell a violent video game like Mortal Kombat to a minor.

    The Supreme Court has long held, under the Miller/Ginsberg rule, that the First Amendment does not preclude making it a crime to give a minor non-obscene sexual material that is "harmful to minors." Should the Court also allow states to criminalize giving minors material which depicts or describes violence?

    Does the California law -- which permits parents to give violent video games to their children, but prohibits minors from purchasing those games -- interfere with or support the role of parents in deciding what is suitable for their children?

    Are video games different from movies or books that may be just as violent?

    The Court's questions showed great skepticism about California's proposal to extend Miller/Ginsberg to create a violence exception to the First Amendment, but also showed that some Justices were receptive to the notion that the law supported the role of parents, and to the notion that video games are different.

    "[I]t was always understood that freedom of speech did not include obscenity," Justice Scalia stated. "Was there any indication that anybody thought, when the First Amendment was adopted, that there was an exception to it for speech regarding violence? Anybody?"

    Justice Sotomayor asked, "where is the tradition of regulating violence?"

    Justice Kennedy expressed a concern about the lack of consensus on what depictions of violence were "harmful to minors." Kennedy said, "Sex and violence have both been around a long time, but there is a societal consensus about what's offensive for sexual material and there are judicial discussions on it. ... But you are asking us to go into an entirely new area where there is no consensus, no judicial opinions."

  • November 2, 2010
    A number of Tea Party-backed candidates are likely to win congressional seats in today's midterm elections if pundits and polls are correct, and those candidates will bring with them a "radical gun agenda," writes constitutional law scholar and professor Adam Winkler.

    In a recent piece for The Daily Beast, Winkler, a law professor at UCLA, notes that many Tea Party candidates have loudly pushed their economic platforms, which largely consist of vague calls for cuts in government spending. But, he writes, those candidates also harbor strikingly extreme positions on gun rights and gun control.

    Winkler writes:

    In state after state, Tea Party candidates like Rand Paul in Kentucky and Joe Miller in Alaska advocate for the adoption of radical the so-called ‘Firearms Freedom Acts.' These laws, which declare that the federal government has exceeded its constitutional authority by regulating gun sales, are intended to nullify the federal Brady Act, which requires background checks for most gun purchases. Eight states in the throes of Tea Party fervor, including Arizona, Utah, and South Dakota, have already enacted such laws - even though, as a federal court held last month, these laws are clearly unconstitutional.

    Winkler also notes that Tea Party candidates have enthusiastically embraced a group called Gun Owners of America, which was founded by Larry Pratt, who is "usually credited with starting the crazed patriot militia movement in the 1990s." Pratt, as Winkler writes, has criticized the nation's largest gun lobby, the NRA, for not being pro-gun enough.

    These candidates are all about eradicating all gun control laws, there is no middle ground for them, even though many of the candidates claim to worship President Ronald Reagan, the professor continues. (And as Winkler notes, Reagan did support some gun control regulation. He signed a bill as governor of California outlawing people from carrying loaded guns, and "vigorously endorsed the Brady Act.")

    In Nevada, the Tea Party candidate Sharron Angle, again if polls are to be believed is likely to topple Senator Harry Reid, "gave voice to the militia movement's views in January when, in a radio interview, she warned if elections don't force officials like Harry Reid out of office, the people may be forced to turn to Second Amendment remedies."

    For Winkler these candidates are far removed from the mainstream, and he cites ample evidence that what they're really pushing is a revolution.

    Winkler recently talked with ACSblog about gun control regulation in the wake of the landmark Supreme Court decisions on the Second Amendment, and also his forthcoming book, Gunfight: The Battle Over the Right to Bear Arms in America. His interview is available here.

  • November 1, 2010
    If you want signs of so-called "judicial activism" look to the conservative bloc of the U.S. Supreme Court, writes Sen. Sheldon Whitehouse, a member of the Senate Judiciary Committee.

    In a piece for The National Law Journal, Sen. Whitehouse (pictured) writes that for many years the term "judicial activism" has been lobbed by conservatives "so repeatedly that it is now in the common parlance, but without any clear meaning." He continues, "For some, ‘judicial activism' applies to any decision that fails to meet conservatives political purposes, but never to a decision that meets conservative goals, no matter how many acts of Congress it strikes down, how many prior decisions it overturns or how recklessly it strains to decide broad questions of constitutional law."

    Sen. Whitehouse notes a number of "red flags" to look for when determining if a court is indeed engaging in judicial activism. Those markers include, a court with low respect for state or federal laws, a court that easily strikes precedents, one that issues strings of 5-4 decisions instead of finding common ground, a court where a "discernable pattern of results" emerges, and a court that easily ignores "rules and tenets of appellate decision-making that have long guided courts of final appeal."

    The senator concludes that the Roberts Court's conservative bloc is flying all those red flags.

    The five-member conservative majority easily overturns precedent, fails to find common ground, goes well beyond appellate decision-making standards, easily ignores the legislative process, and a discernable pattern has emerged.

    Sen. Whitehouse writes:

    Corporations have prevailed at striking rates. The cause of social conservatism has made pronounced strides with respect to abortion and gun issues. Simply put, the conservative bloc has established a record that has a distinctive pattern - and, at this stage, it is improbable that it would be coincidence. As Jeff Toobin noted in The New Yorker in May 2009, the leader of this bloc, Chief Justice John Roberts Jr., ‘has served the interests, and reflected the values, of the contemporary Republican Party.'