January 2011

  • January 4, 2011
    As noted here yesterday, Chief Justice John Roberts entered the discussion over the rising number of vacancies on the federal bench by deploring in his year-end review delays in the judicial nominations process. But in its lead editorial today, The New York Times says Roberts "diluted his message a bit by suggesting that blame for this undermining of the judicial branch rests evenly with both parties."

    The "main culprit," according to the editorial, "is an unprecedented level of Republican obstructionism."

    The editorial, "The Missing Judges," states:

    In the last Congress, Republicans typically refused to publicly explain their opposition to individual nominees and their prolonged blockade of candidates who had cleared the [Senate Judiciary Committee] either unanimously or with just a couple of negative votes. Between Congress's return from its August recess and the start of the lame duck session, Senate Republicans consented to vote on just a single nomination.

    The editorial also notes that four "other nominees approved by the committee by a party-line vote were also denied Senate consideration," including the nomination of Berkeley Law School professor Goodwin Liu, "a well-qualified law professor and legal scholar whose main problem for Republicans, it seems, is his potential to fill a future Supreme Court vacancy."

    NPR reported this afternoon that President Obama will renominate "more than a dozen candidates for judicial positions on the federal courts," including Liu.

    To track vacancies on the federal bench and status of judicial nominations, visit JudicialNominations.org.

  • January 4, 2011

    The U.S. Court of Appeals for the Ninth Circuit today referred a crucial procedural question in the challenge to Proposition 8 to the California Supreme Court, Politico reports.

    The three federal appeals court judges who heard oral arguments in Perry v. Schwarzenegger last month have asked the state's highest court to answer the question of whether "proponents of an initiative or measure" such as the groups that pushed for the passage of the state's gay marriage ban have standing to file an appeal under California state law.

    "In the absence of controlling authority from the highest court of California on these important questions of an initiative proponent's rights and interests in the particular circumstances before us, we believe we are compelled to seek such an authoritative statement of California law," the judges write.

    Because the state chose not to appeal the lower court's decision to strike down the ban, a finding that Proposition 8 proponents do not have standing will end the appeal.

    Judge Stephen Reinhardt, while signing onto the order, also wrote a separate concurring opinion, explaining to the public why, "in these times, before we are free to decide such important questions the parties must often overcome difficult procedural barriers," noting a trend in the judicial system "that emphasizes technical rules over deciding cases on the merits, and indeed over the merits themselves."

    Read the full order here, and Judge Reinhardt's concurrence here.

  • January 4, 2011
    Justice Antonin Scalia's claim that the U.S. Constitution does not protect women from discrimination has riled "women's rights activists," reports The Washington Post, and stirred some critical examination of the justice's much-touted method of constitutional interpretation.

    Last fall in an interview, recently published by the California Lawyer, Scalia said, "Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't. Nobody ever thought that that's what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don't need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don't like the death penalty anymore, that's fine. You want a right to abortion? There's nothing in the Constitution about that. But that doesn't mean you cannot prohibit it. Persuade your fellow citizens it's a good idea and pass a law. That's what democracy is all about. It's not about nine superannuated judges who have been there too long, imposing these demands on society."

    Yale Law School professor Jack Balkin, in a Balkinization post, notes that Scalia's comments should not be news - he's provided similar commentary before. But Balkin writes that he does "have a few bones to pick with him about his originalist claims."

    Balkin writes:

    First, the central purpose of the Fourteenth Amendment was to guarantee equal citizenship and equality before the law for all citizens and for all persons. It does not simply ban discrimination based on race. The fact that the word race is not mentioned in the text (as it is in the fifteenth amendment) was quite deliberate.

    Scalia argues that the fourteenth amendment was not intended to prevent sex discrimination. That's not entirely true. The supporters of the fourteenth amendment did not think it would disturb the common law rules of coverture: under these rules women lost most of their common law rights upon marriage under the fiction that their legal identities were merged with their husbands. But these rules did not apply to single women. So in fact, the fourteenth amendment was intended to prohibit some forms of sex discrimination-- discrimination in basic civil rights against single women.


    Scalia argues that if contemporary generations want to protect women, they can pass antidiscrimination laws and nothing in the original understanding of the Constitution forbids this. But this is not quite correct. The federal government would not be able to pass civil rights laws protecting women from discrimination; only states and local governments could. That is because if judges followed what the Constitution's framers expected, federal regulatory power would be greatly constricted and, among other things, the Civil Rights Act of 1964's ban on sex discrimination would be unconstitutional because it would beyond federal power to enact. Justice Scalia would surely vote to uphold much federal legislation today (see his concurrence in the medical marijuana case, Gonzales v. Raich), but that is because he accepts the New Deal revolution, which he well knows is not consistent with original understandings about the scope of federal power. So Scalia's arguments about what modern majorities can do today rest on his view that a very significant proportion of constitutional understandings of the framers can simply be jettisoned because they make little sense in today's world. That is to say, he doesn't really believe in originalism either when it comes to a very wide array of cases concerning federal governmental power.

  • January 4, 2011
    Spurred by the disclosure of classified government information by WikiLeaks Congress is considering a broad measure that if enacted would undermine free speech rights, writes constitutional law scholar Geoffrey R. Stone in an op-ed for The New York Times.

    The bill, pending in both chambers, would make it a crime for anyone to "knowingly and willfully" disseminate information "prejudicial to the safety or interest of the United States." Stone, a law professor at the University of Chicago and chair of the ACS Board, says that while the measure "may be constitutional as applied to government employees who unlawfully leak such material to people who are unauthorized to receive it, it would plainly violate the First Amendment to punish anyone who might publish or otherwise circulate the information after it has been leaked. At the very least, the act must be expressly limited to situations in which the spread of the classified information poses a clear and imminent danger of grave harm to the nation."

    Stone continues:

    The clear and present danger standard has been a central element of our First Amendment jurisprudence ever since Justice Oliver Wendell Holmes Jr.'s 1919 opinion in Schenk v. United States. In the 90 years since, the precise meaning of ‘clear and present danger' has evolved, but the animating principle was stated brilliantly by Justice Louis D. Brandeis in his 1927 concurring opinion in Whitney v. California. The founders ‘did not exalt order at the cost of liberty,' wrote Brandeis; on the contrary, they understood that ‘only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such ... is the command of the Constitution. It is, therefore, always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.'

    In December, Professor Stone testified before the U.S. House Judiciary Committee on the bill, which is dubbed the "Securing Human Intelligence and Enforcing Lawful Dissemination Act," or SHIELD Act. His written testimony before the committee is available here.

  • January 3, 2011

    Current law and administration policy on providing "material support" to groups labeled terrorist organizations is leading to perverse results in which "the right to make profits is more sacrosanct than the right to petition for peace," writes Georgetown law professor David Cole in The New York Times.

    Just last month, Cole points out, a group of politicians that included former New York mayor Rudolph Giuliani and former attorney general Michael Mukasey, may have committed a crime when they told a group of Iranian exiles in Paris that President Barack Obama should remove the opposition group Mujaheddin-e Khalq from its list of foreign terrorist organizations.

    What was once considered free speech may now be criminal, in the wake of the Supreme Court's decision last year in Holder v. Humanitarian Law Project, holding that it is a crime not only to provide any "material support" to a group labeled a "foreign terrorist organization," but also to engage in speech coordinated with a foreign terrorist group for its benefit, Cole explains.

    He continues:

    The government has similarly argued that providing legitimate humanitarian aid to victims of war or natural disasters is a crime if provided to or coordinated with a group labeled as a "foreign terrorist organization" - even if there is no other way to get the aid to the region in need. Yet The Times recently reported that the Treasury Department, under a provision ostensibly intended for humanitarian aid, was secretly granting licenses to American businesses to sell billions of dollars worth of food and goods to the very countries we have blockaded for their support of terrorism. Some of the "humanitarian aid" exempted? Cigarettes, popcorn and chewing gum.

    Cole calls for reform of material support laws that would protect the provision of "legitimate" humanitarian aid, and make clear that "advocating only lawful, nonviolent activities" is not a crime and that "corporate interests in making profits from cigarettes are not sufficient to warrant exemptions from sanctions on state sponsors of terrorism."

    "Genuine humanitarian aid and free speech can and should be preserved without undermining our interests in security," he writes.

    Cole, who is litigating several other cases involving "material support" law, explained in a recent ACSBlog guest post how two other cases pending before federal appeals courts could "dramatically extend the already expansive sweep of the ‘material support' laws."