My friend and fellow lawyer (and law clerk and TA at Penn State University’s School of Law) Josh Blackman has put out two new videos with his non-profit, the Harlan Institute. Named after the former justice, the Institutes mission is to facilitate learning about the supreme Court and the Constitution among high school aged students. Among other services, Harlon offers preset curriculums for teachers—great for rainy days! Josh has recently been able to multiply his institutes efforts by partnering with Justice Sandra O’Connor’s outfit dedicated to promoting created civic awareness. Check out Josh’s videos promoting the Harlan Institute and FantasyScotus—yes, a fantasy sports game that allows you to predict just like the justices predict:

63-37. It’s just as well.

(Adam Zyglis, The Buffalo (N.Y.) News)

… although Kennedy plays the Fredo role in that family.

Not all was sunshine and bullets at the supreme Court yesterday. Justice Kennedy swung both ways yesterday, joining a damning Ginsburg opinion that essentially gives universities free reign to impose diversity on private student groups. Hadley Arkes has a must-read write up for First Things. A snippet:

Over thirty years ago, in the famous Bakke case, Justice Lewis Powell held that schemes of racial preference could be constitutionally acceptable so long as colleges and universities did not focus exclusively on race as they gauged the worth of applicants. It was necessary, he said, to take race “into account” in connection with many other attributes that could make a student appealing to an office of admissions. The package of admirable traits should be “diverse,” and the aim, of course, was to produce an enrollment with a wholesome “diversity.”

Diversity then became the mantra, and as it has been played out with inventive variations while it reordered and reconfigured the academy. Now, with the decision on the Christian Legal Society, Justice Kennedy and his colleagues have put another powerful weapon in the hands of the people who rule the universities and colleges. We can expect to see, in the course of this next year, resolutions brought forth in faculty meetings to couple the standing policy on “non-discrimination” with this new policy of “all-comers”—since, as we shall hear, that policy has been sustained now by the Supreme Court.

The Court confirmed this novel policy, after all, for a public university, and if it can be installed there, it could be installed with far more freedom in a private college. But it is a policy that perfectly fits and amplifies the scheme of diversity. And once installed, that policy provides the lever for finally driving Christian groups from the life of the college. The scene is in place now to have gay activists seek to become officers in these groups, as they have at Tufts and other schools. Indeed, that has been the test of choice, used in challenging the Christian groups and bringing the complaints that threaten their standing in their colleges.

Ginsburg argued that there was little of practical consequence at stake here. The Christian Legal Society might be denied official standing and funds, but the members could still meet, whether in classrooms or perhaps in catacombs off the campus. They may not be listed on official websites and calendars, but hey, as Justice Ginsburg points out, the word is quickly put out these days on e-mails and other websites.

For Ginsburg it was an act of high presumption for the Christians, with such a sectarian character, claiming the funds that flow to other groups in a public university—groups that have not offended against the new morality by their refusal to purge themselves of moral judgments on the ways people engage in sex. But Ginsburg serenely misses the point: It is not about the money or the use of the bulletin boards and websites. It is about the willingness to withdraw, from Christian groups, their claim to stand as fully legitimate groups in the life of the college, as though there were something faintly noxious about them, something that bars them from the company of people who respect the claims of propriety and reason.

Today’s decision in McDonald v. Chicago reaffirms that indeed gun rights apply to citizens, thus limiting the ability of the several States to restrict gun ownership. A 5-4 majority decides the case in favor of the Second Amendment. The plurality (Alito, writing, with Scalia, Roberts and Kennedy, joining) believe it to be another fundamental right incorporated through the Due Process clause (like, say, abortion, contraception and gay marriage). The lone voice crying in the wilderness, however, Justice Thomas, openly and forcefully critiques the plurality for going down this path. He would incorporate the right through the Privileges or Immunities clause of the 14th Amendment. His solitary opinion is a MUST READ. Here are some choice nuggets from Thomas:

I agree with the Court that the Fourteenth Amendment makes the right to keep and bear arms set forth in the Second Amendment “fully applicable to the States.” Ante, at 1. I write separately because I believe there is a more straightforward path to this conclusion, one that is morefaithful to the Fourteenth Amendment’s text and history.
Applying what is now a well-settled test, the plurality opinion concludes that the right to keep and bear armsapplies to the States through the Fourteenth Amend-ment’s Due Process Clause because it is “fundamental” to the American “scheme of ordered liberty,” ante, at 19 (citing Duncan v. Louisiana, 391 U. S. 145, 149 (1968)), and “‘deeply rooted in this Nation’s history and tradi-tion,’” ante, at 19 (quoting Washington v. Glucksberg, 521 U. S. 702, 721 (1997)). I agree with that description of theright. But I cannot agree that it is enforceable against the States through a clause that speaks only to “process.” Instead, the right to keep and bear arms is a privilege of American citizenship that applies to the States throughthe Fourteenth Amendment’s Privileges or Immunities Clause.

Our cases continue to adhere to the view that a right is incorporated through the Due Process Clause only if it is sufficiently “fundamental,” ante, at 37, 42–44 (plu-rality opinion)—a term the Court has long struggled to define. While this Court has at times concluded that a right gains “fundamental” status only if it is essential to theAmerican “scheme of ordered liberty” or “‘deeply rooted in this Nation’s history and tradition,’” ante, at 19 (pluralityopinion) (quoting Glucksberg, 521 U. S., at 721), the Court has just as often held that a right warrants Due Process Clause protection if it satisfies a far less measurable range of criteria, see Lawrence v. Texas, 539 U. S. 558, 562 (2003) (concluding that the Due Process Clause protects “liberty of the person both in its spatial and in its moretranscendent dimensions”). Using the latter approach, theCourt has determined that the Due Process Clause applies rights against the States that are not mentioned in the Constitution at all, even without seriously arguing thatthe Clause was originally understood to protect such rights. See, e.g., Lochner v. New York, 198 U. S. 45 (1905); Roe v. Wade, 410 U. S. 113 (1973); Lawrence, supra.

All of this is a legal fiction. The notion that a constitu-tional provision that guarantees only “process” before a person is deprived of life, liberty, or property could definethe substance of those rights strains credulity for even the most casual user of words. Moreover, this fiction is a particularly dangerous one. The one theme that links the Court’s substantive due process precedents together istheir lack of a guiding principle to distinguish “fundamen-tal” rights that warrant protection from nonfundamentalrights that do not. Today’s decision illustrates the point. Replaying a debate that has endured from the inception ofthe Court’s substantive due process jurisprudence, thedissents laud the “flexibility” in this Court’s substantive due process doctrine, post, at 14 (STEVENS, J., dissenting); see post, at 6–8 (BREYER, J., dissenting), while the plural-ity makes yet another effort to impose principled re-straints on its exercise, see ante, at 33–41. But neither side argues that the meaning they attribute to the DueProcess Clause was consistent with public understanding at the time of its ratification.

Thanks to Josh Blackman and his great instant analysis.

Once in a blue moon, I find myself agreeing with Michael Gerson. After that I usually take my temperature. But today, not only do I agree with him, I am stunned at his ability to boil down a complex issue into just a few words. In a commentary on Al Franken, Gerson hits the nail on the head of how most modern leftists view the supreme Court:

No, in Franken’s view judges should be more like the Committee of Public Safety during the French Revolution — an unelected group of super-legislators who issue binding verdicts based on their advanced conceptions of justice and class warfare.

My memory is a little fuzzy. The French Revolution ended well for the French, right?

Heh-heh. “The Bork hearings were great, the Bork hearings were educational.” So let’s have some education during your hearings Ms. Kagan. I’ll bet she’s fantasizing about it.

Consider this your chance to post anything and everything you’d like to say about Elena Kagan. I’d say more, but quite frankly, in her legal career she ain’t said much. As my friend Josh Blackman points out, this is part of Elena’s thirty year bet and ambition to get on the Supreme Court. The results of Borquing continue: we now get candidates whose paper trail is so thin, that we can’t reasonably evaluate whether or not they are qualified to be on the court from a scholarly perspective. This was a problem for Harriet Miers (among others). But I suppose it won’t be for Kagan. Ivy League association cures many deficiencies. Also, Andrew Sullivan thinks the question of whether or not she is gay is worth getting an answer on. Is it or should it be relevant?

It’s looking that way.

According to Senator Leahy, being from a monastery is apparently a bad thing. We don’t want judges from the judicial “monastery” on the Supreme Court:

“I would like to see more people from outside the judicial monastery, somebody who has had some real-life experience, not just as a judge insulated,” Leahy said last year, even before Sonia Sotomayor was selected.

The last time I checked, monasteries were a place of intense study and prayer. His other works notwithstanding, Thomas Cahill makes the quite compelling argument in How the Irish Saved Civilization that monasteries saved Western Europe. The monasteries and their monks preserved and advanced learning; they did not destroy it. I’m all for bringing people from the judicial monastery to the great temple of the supreme Court. So long as their from the right kind of monasteries. Not all monasteries are equal. Leahy’s ignorance on one level is amusing; on another, it’s quite disturbing. That’s ok. He probably went to public school and learned that the Middle Ages should be called the Dark Ages, they are anything but dark, I can assure you.

In United States v. Stevens the Court held that the law violated the First Amendment in an 8-1 decision (with Alito the lone dissenter).

Although the law had noble roots, the Court was right to strike it down IMHO, particularly because of the breadth of the law. If the government does not like conduct, it should ban and prosecute the conduct rather than the speech flowing therefrom.

Apparently, Scalia was pretty tough on the government during oral argument. Maybe because he was afraid of having to buy Monster Bucks XVI on the black market.

You can read the opinion here.

So Justice Stevens is headed out and these names comprise the so-called short-list:

Elena Kagan (Solicitor General)
Merrick Garland (D.C. Cir.)
Diane Wood (7th Cir.)
Leah Ward-Sears (former Chief Justice of GA Supreme Court)
Sidney Thomas (9th Cir.)
Martha Minow (dean of Harvard Law)
Elizabeth Warren (Congressional Oversight Panel)
Not Hillary Clinton

Since I am in the midst of exam-prep I am unable to vet these folks as much as I would like. Orin Kerry over at the Volokh Consipracy has a great post about the “diversity” of some of these potential justices.

Any thoughts?

…Justice Stevens is retiring. If you thought Sonia Sotomayor was huge, wait till this confirmation. Will and should the Republicans filibuster someone like Kagan? Would that be a smart political move?

The news is out (via an email sent from the Dean to the faculty) that Justice Thomas will speak as the dedication of the new law school at Ole Miss next spring!

On Behalf Of Samuel M. Davis

Sent: Thursday, March 25, 2010 10:30 AM

To: Law Faculty

Cc:[list omitted]

Subject: New building dedication speaker

I am pleased to tell you that Justice Clarence Thomas has accepted our invitation to be the principal speaker at our new building dedication ceremony in spring 2011. …

Imagining the fallout that most certainly occurred on the fifth floor (the faculty offices) brings a smile to my face.

After the State of the Union, a question hung out there: how would the supreme Court respond to President Obama. Well, they wouldn’t. They couldn’t. They shouldn’t. Though we have checks and balances, our branches are not co-equal. The President’s bully pulpit and executive authority truly is checked only by Congress. To any supreme Court decision the President may (and has in the past said…), “they have their decision, let them enforce it.” Thus the judges show deferential silence. That does not mean, however, a Justice cannot make a rather smart, off-the-cuff comment in rebuttal. Here’s what Clarence Thomas said yesterday to a group of law students concerning Citizens United: (more…)

Mr. Obama has his opinion; now let him render it.

Keith is apparently displeased that political speech is almost as free as pornography.

Today is the 37th anniversary of Roe v. Wade (1973), the U.S. Supreme Court opinion in which the court ruled that the Constitution’s right of privacy requires a right to abortion. Although prolifers decry this decision, few have rarely examined the logic of the opinion. For this reason, my 2006 article may be of interest: “The Supreme Court, Roe v. Wade, and Abortion Law,” Liberty University Law Review 1.1 (2006): 37-72. It is a revised and updated version of the previously published article, “Roe v. Wade: Its Logic and Its Legacy.” The Southern Baptist Journal of Theology 7.2 (Summer 2003): 4-28. The Liberty article was again revised and updated when it was published as chapter 2 of my book, Defending Life: A Moral and Legal Case Against Abortion Choice (Cambridge University Press, 2007)

(Originally posted on the Return to Rome blog)

This comes from a recent “conversation” between Justice Scalia and Justice Breyer hosted by the University of Arizona. The Justices were discussing the Constitutional interpretation; specifically the merits of originalism v. values-based interpretation.  Justice Scalia delivered this line after Justice Breyer touted Brown v. Board of Education as the coup de grace of originalism:

“Hitler developed a wonderful automobile,” [Scalia] went on. “What does that prove? I’ll stipulate that you can reach some results you like with the other system. But that’s not the test.”

H/T to Mirror of Justice

I know I would be if I spun this wildly.

[Deal] Hudson argues that the public option will end up extending federal funding for abortion. He says that the courts will step in even if Congress doesn’t mandate abortion coverage in any such plan. Mind you, the courts have not stepped in to over-rule the Hyde Amendment lo these many years. The federal health insurance coverage that members of Congress enjoy does not include abortion coverage. Federal Medicaid funds do not support abortion. So, why would the federal option, which would be modeled after the insurance that members of Congress get, necessarily end up mandating abortion coverage? Hudson does not say. (more…)

It’s always nice when a supreme Court justice, Scalia, says we should have less lawyers:

Well, you know, two chiefs ago, Chief Justice Burger, used to complain about the low quality of counsel. I used to have just the opposite reaction. I used to be disappointed that so many of the best minds in the country were being devoted to this enterprise.

I mean there’d be a, you know, a defense or public defender from Podunk, you know, and this woman is really brilliant, you know. Why isn’t she out inventing the automobile or, you know, doing something productive for this society?

I mean lawyers, after all, don’t produce anything. They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That’s important, but it doesn’t put food on the table and there have to be other people who are doing that. And I worry that we are devoting too many of our very best minds to this enterprise.

And they appear here in the Court, I mean, even the ones who will only argue here once and will never come again. I’m usually impressed with how good they are. Sometimes you get one who’s not so good. But, no, by and large I don’t have any complaint about the quality of counsel, except maybe we’re wasting some of our best minds.

Via Volokh, Justice Stevens has confirmed to AP that he his hired only one clerk for this upcoming term. This could signal his intention to step down at terms’ end. Or, it could mean he wants to do more of the actual work himself. At 89.  Somewhere, Oliver Wendall Holmes rejoices that his record for oldest-serving member of the court may yet be safe.

Our great, glorious and most esteemed Founder is on fire in the blogosphere. Over at First Things, he has passed along this wonderful Green Bag review of the latest term of the Supreme Court. And before you make it to the article, let me make a pitch for the Green Bag: it’s a wonderful and entertaining journal of legal humor and history, re-founded by Ross Davies over at GMU School of Law. The Green Bag has been known, more often than not, to send you a Supreme Court Justice Bobblehead as a treat for the subscription. It’s not guaranteed, but who WOULDN’T want a mini-Niño nodding away on your desk to your self-proclaimed brilliance! To quote the article: (more…)

Virginia Democrat Senator Jim Webb has had an amazing change of heart since defeating Republican George Allen in 2006. Webb—a former Republican—ran as a “moderate” (snicker) Democrat and defeated once Presidential hopeful Allen by less than 9000 votes out of 2.4 million cast.

In Webb’s excellent history of the Scots-Irish in America, Born Fighting, Webb—himself a proud Scots-Irish—writes the following:

“. . . a feeling that the culture so dramatically symbolized by the Southern redneck was the greatest inhibitor of the plans of the activist Left and the cultural Marxists for a new kind of society altogether.” (Page 295.)

“In the age of political correctness and ultraethnic sensitivities, it has become delicate, to say the least, to celebrate many of this culture’s hard-won accomplishments when teaching American history in today’s public schools.” (Page 17.)

“The Scottish people did not care much for the larger crowd and they especially did not care much for elites.” (Page 42.)

“America’s elites have had very little contact with this culture.” (Page 18.)

“. . . they ignore them at their peril.” (Page 19.)

Despite these condemnations of “elites” and “political correctness”, Webb apparently has no problem enthusiastically supporting the elitist and politically correct agenda of the Obama administration. He has also apparently surrendered his manhood to the will of Queen Pelosi in the House and Grandma Reid in the Senate. Case in point: Despite Webb’s strong lip-service support for the 2^nd amendment, he voted with the rest of the Democrat elites to confirm Judge Sotomayor to the Supreme Court; ignoring the wise Latino woman’s hostility toward gun rights. I have to assume that the price for Webb obtaining more political power within the Democrat Party was his willingness to sing soprano in a voice similar to that of Harry Reid’s. (Doesn’t Reid’s voice remind you of a grandmother battling menopause?)

Sotomayor’s speeches, along with many of her decisions, would certainly lead an objective observer to conclude that she is what Webb would describe as someone with “ultraethnic sensitivities” and a member of “the activist Left and the cultural Marxists”—a group which he clearly targets for derision and contempt in his book. What’s happened to Senator Webb?

Now comes Webb’s tucking tail and running off to East-Asia (at taxpayer’s expense) during the August recess. Is this courageous, highly-decorated Vietnam War veteran afraid to face his constituents because of the boiling anger over Obama’s health care “reform” or, has he become an elitist who just doesn’t want to have much “contact with this culture?” Hey Senator, as you’ve pointed out, many of your constituents don’t care much for elites. You ignore us at your (political) peril.

Senator Webb, call your office. There are some great inhibitors that would like to talk to you.

Robert P. George, the McCormick Professor of Jurisprudence at Princeton University, published an op-ed piece in this morning’s Wall Street Journal. It concerns the issue of same-sex marriage and the courts. Here is an excerpt:
(more…)

…have in common? Professor Allison Hayward giving her opinion and understanding of next term’s campaign finance case, Citizen’s United, on the docket. I wish she had pulled these stunts in class:

Thanks, Zywicki!

I had been meaning to dig deeper into the issue of Senatorial deference for the President’s Supreme Court nominations, but I simply do not have the time to do a research paper on such a mundane issue.  Long story short, though, I agree with Mike Rappaport , Randy Barnett, and Ramesh Ponnuru.

First Rappaport addresses the question, “Is the President entitled to deference on Supreme Court nominations?” (more…)

During Judge Sotomayor’s confirmation hearings, I have been interested in various Republican Senators’ criticism of the view that the individual right to bear arms in the Second Amendment may not apply against the States.  What has specifically interested me is that the doctrine of incorporation, as we have it today, means that certain provisions of the Bill of Rights apply against the States through the 14th Amendment’s due process clause. I have not come to a firm conclusion as to whether, as matter of original meaning, the 14th Amendment really applied any provisions in the Bill of Rights against the States.  But I am certain that if it did, it was not through the amendment’s due process clause. To hold otherwise necessarily requires one to concede that substantive due process is a legitimate legal doctrine.  Unlike many Senate Republicans on the Senate Judiciary Committee, I do not believe that substantive due process becomes legitimate merely because its application would compel a result that I may like.

(more…)

One thing is becoming clear in the early rounds of questioning at Judge Sotomayor’s confirmation hearing:  Judge Sotomayor appears to insist that her past words be interpreted according to her original intent.  I wonder if she would insist that the words written in the Constitution be interpreted accordingly?

The New York Times today has an editorial calling for tough questioning of Sotomayor.  When you get to the actual questions the NYT wants to hear asked, things get rather comical.

Some of Judge Sotomayor’s inclinations can be read from her numerous judicial opinions, but others cannot. The Senate should assure itself that she recognizes the constitutional right to privacy and the correctness of the line of cases that includes Roe v. Wade. It should ensure that she believes in appropriate limits on presidential power, an area in which the court has played a critical role in recent years, and that she is respectful of Congress’s authority, which has taken a beating lately.

Holy Profiles in Journalistic Courage!  We’ve got to make sure she’s sufficiently to the left.  Never mind the travesty of the Ricci case or Sotomayor’s racialist thinking.

If we had an equivalent in the Scalia confirmation, it would sound something like this:

Senator X:  Mr. Scalia, how can we be sure you are an originalist?  Have you ever been hammered at a Constitution Day party?  Do you have any household pets nicknamed “Publius”?

Senator Y:  Much has been made of your membership in Opus Dei, but I’m not quite satisfied.  You haven’t scratched once during this entire process, so I can’t believe that hairshirt is truly uncomfortable.