Wednesday, February 28, 2007 

Who Has PBA?

With Justice Alito authoring the opinion in the Whorton case, some concerns have been raised about which Justice will be writing the majority opinion in the partial birth abortion cases. There has been a little discussion about it in the comments on Confirm Them. It's fairly easy to predict which Justice is writing if you have the right information at the right time. The workloads have been traditionally balanced among the Justices (at least as far as the majorities will allow them to be). Generally, each Justice will get one majority opinion assignment during each sitting.

Making use of the calendar for the October 30th Session and the list of opinions handed down, I sketched out a "match the opinion to the Justice" chart on a sheet of paper. Each Justice has written a majority opinion for that sitting except Kennedy and Souter (there was one per curiam opinion also). The only opinions left are James v US (defining a "violent felony" under federal law), Environmental Defense v Duke Energy (a Clean Air Act case about proper venue and the definition of... z z z z....), and the twin powerhouse of Gonzales v Carhart and Gonzales v Planned Parenthood (the constitutionality of the Partial Birth Abortion Ban Act).

So who has PBA? Kennedy. Regardless of how you think it will come out, it's gotta be Kennedy. If he stuck to his guns (and his vigorous dissent in Stenberg v Carhart), then he is writing for a five Justice majority (Roberts, Scalia, Kennedy, Thomas, Alito) upholding the ban. Roberts would have assigned Kennedy the opinion to keep his vote. Strategic opinion assignment has been a common practice in the past. The best way to keep someone's vote if he/she is squishy on the case is to let them write it. Even if you think that Kennedy has double crossed conservatives again, he's still got the opinion for the very same reasons. Stevens (the senior liberal Justice) would have assigning authority for the other potential block of five. He'd give it to Kennedy to keep his vote as well.

My prediction right now is Kennedy writes, ban is upheld. Watch me be totally wrong and look stupid.


Faith-Based Standing Fun at the Court

Today, the Supreme Court heard oral arguments in Hein v Freedom from Religion Foundation. This case has a lot of Wisconsin connections. Just check out the Milwaukee Journal Sentinel article about it...
Anne Gaylor, Wisconsin's best-known atheist, has fought to keep church and state separate for almost 30 years. But the 80-year-old Gaylor marked a first Wednesday when a lawsuit she brought was heard by the United States Supreme Court.


Two others from Wisconsin have high-profile roles in the litigation.

Jay F. Hein of Shawano has directed the White House's faith-based initiatives office since August. He, too, was in court, but let the Justice Department do the talking.

Doing that was Paul D. Clement, the U.S. solicitor general, who grew up in Cedarburg.
This case is a challenge to the Bush Administration's faith-based initiatives executive order. The real legal issue here is standing. Standing means that you can bring the lawsuit in court. Generally, the Court isn't big on giving someone standing based on the fact that they are a taxpayer. That policy goes all the way back to Frothingham v Mellon in 1923. But there is an exception. Flast v Cohen said that taxpayer standing would be permitted in certain circumstances...
The nexus demanded of federal taxpayers has two aspects to it. First, the taxpayer must establish a logical link between that status and the type of legislative enactment attacked. Thus, a taxpayer will be a proper party to allege the unconstitutionality only of exercises of congressional power under the taxing and spending clause of Art. I, 8, of the Constitution. It will not be sufficient to allege an incidental expenditure of tax funds in the administration of an essentially regulatory statute. This requirement is consistent with the limitation imposed upon state-taxpayer standing in federal courts in Doremus v. Board of Education, 342 U.S. 429 (1952). Secondly, the taxpayer must establish a nexus between that status and the precise nature of the constitutional infringement alleged. Under this requirement, the taxpayer must show that the challenged enactment exceeds [392 U.S. 83, 103] specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, 8. When both nexuses are established, the litigant will have shown a taxpayer's stake in the outcome of the controversy and will be a proper and appropriate party to invoke a federal court's jurisdiction.
Straight from Earl Warren's pen. In that case, the Department of Health, Education, and Welfare had been spending money on religious schools.

Here is what Jan Crawford Greenburg, who was in attendance at the oral arguments, had to say...
Chief Justice Roberts really ran the show, completely directing the argument against taxpayer standing-and even stepped in a couple of times to help Solicitor General Paul Clement explain why the atheist group, Freedom from Religion Foundation, had no legal right to sue. Roberts nailed Andrew Pincus, the group's lawyer, with a pointed question right out of the box: "I don't understand, under your theory, why couldn't any taxpayer sue our marshal for saying, 'God save this honorable court?'" It was Pincus's very first question, and it turned the argument. By the end, it appeared that the atheists were going to be on the losing side-though the justices didn't seem especially taken with Clement's proposals, either (or, for that matter, with the line-up of their own precedents they have to take up to decide the case).
The Chief in the drivers seat as usual... Roberts was made for that job.

Scanning through the argument transcripts, I'm a little puzzled about how this will come out. I know that this is starting to get repetitive, but Kennedy has the controlling vote here. I think it's safe to say that the ideological blocs will form as they tend to do, and Justice Kennedy will once again hold the final vote. Kennedy did seem sympathetic to the President's position though. At one point, he expressed concern about the courts being too involved in who the President "can talk to." We'll have to see what happens.


My Weekend with the FedSoc

Wow, what a weekend. As I previously mentioned, I made the trip to this year's Federalist Society Student Symposium at Northwestern Law School. Our chapter managed to get 13 students to attend, which is pretty impressive considering that the chapter was barely active until this year. As an officer, I will take as much credit for that as humanly possible (even though I probably deserve very little). I promised that I would take notes, but I didn't. "Do I really want to carry a legal pad with me all weekend?" Nope. I also lost the materials that Northwestern gave me. Fortunately, my memory is pretty good. I also enthusiastically point you to Simon's post about the event. He's even got pictures (I forgot my camera... I wasn't exactly at top form that weekend).

I'm going to take you through my weekend using this schedule of events. Day 1...
3:00 p.m.:
Registration -Thorne Auditorium

5:45 p.m.: Opening Remarks - Thorne Auditorium

6:00 p.m.: Debate - Religion in the Public Square
(Thorne Auditorium, Northwestern University School of Law)

Featuring: Mr. Kevin J. Hasson - Becket Fund for Religious Liberty
Rev. Dr. Michael Newdow - Restore our Pledge of Allegiance

Moderated by: David McIntosh - Mayer, Brown, Rowe & Maw

7:30 p.m.: Panel - What is Morality? The Philosophical and Theological Foundations of Moral Debate
(Thorne Auditorium, Northwestern University School of Law)

Featuring: Prof. John S. Baker, Jr. - Louisiana State University
Prof. Randy E. Barnett - Georgetown University
Prof. Robert Burns - Northwestern University
Prof. Michael J. Perry - Emory University

Moderated by: Prof. Richard Garnett - University of Chicago

9:00 p.m.: Cocktail Reception
(Atrium, Northwestern University School of Law)
Northwestern's building is beautiful. At the registration desk, they gave us a sheet of paper with a "walking tour" of the facilities. After about 5 minutes, I had to turn back. I was getting a little depressed and jealous.

The Religion in the Public Square debate was great. I read the schedule a few times earlier, but it never clicked in my head that Michael Newdow was the Michael Newdow. In case you are as dense as I was, he sued over the constitutionality of "under God" in the Pledge. He and Hasson really duked it out. I got to briefly talk to Newdow at the cocktail reception too. That was kind of a surreal moment. I give him credit for coming to a FedSoc event and give credit to the FedSoc for inviting him. It really made for a lively debate.

The philosophical/theological panel was a little above my pay grade. Prof. Perry was unable to attend, so Prof. Garnett pinch hit for him as best he could. I'm a big Randy Barnett fan, so it was cool to see him speak. His discussion of public versus private morality was accessible enough even for a lightweight such as myself. Surreal moment number 2 of the trip: standing at a urinal next to Prof. Barnett.

The cocktail reception was... well, a cocktail reception. I got to meet FedSoc President Gene Meyer. He's a great guy and was very interested in what we were doing at Marquette. Our chapter got a mention in the Federalist Paper magazine for our same sex marriage debate (I lost my copy of the magazine too... I was really in rare form). For those of you who are really curious, they served Miller Lite, Goose Island Honker's Ale, and wine. I was torn by my regional loyalty (a Milwaukee guy needs to support Miller when in a foreign environment) and my taste buds (Goose Island is just a better tasting product). I alternated. If the Rehnquist Court can be described as a "split the difference" court, I can be a "split the difference" beer drinker. Afterwards, I hit the town with a few fellow Federalists.

Day 2...
8:00 a.m.: Breakfast
(Atrium, Northwestern University School of Law)
Missed it.
9:00 a.m.: Panel - Moral Choices and the Eighth Amendment
(Thorne Auditorium, Northwestern University School of Law)

Featuring: Prof. Ron Allen - Northwestern University
Prof. Michael S. Moore - University of Illinois
Prof. Laurence P. Claus - University of San Diego

Moderated by: Judge Timothy M. Tymkovich
- United States Court of Appeals for the Tenth Circuit
Missed it.
11:00 a.m.:
Debate - Same-Sex Marriage: Marriage, Public Policy, and the
(Thorne Auditorium, Northwestern University School of Law)

Featuring: Prof. Louis Michael Seidman - Georgetown University
Prof. Amy Wax - University of Pennsylvania

Moderated by: Judge Diane S. Sykes - United States Court of Appeals for the Seventh Circuit
Finally got there. The discussion itself was interesting and probably the best analysis of the issue that I have seen, heard, or read. Prof. Seidman provided us with a line that was on week too late for me. Someone recently asked me what Lawrence v Texas was about. I explained it to them in the very traditional facts, legal issue, majority analysis, dissenters, implications kinda way. If I had gotten the question after the conference, Icould've quoted Prof. Seidman. "Lawrence constitutionalized the one night stand." I feel compelled to mention that Moderator/Judge Sykes, MULS grad and proud FedSoc supporter, was also nice enough to track our chapter down Friday night between panels to visit with us.
12:30 p.m.: Lunch Break

2:00 p.m.: Panel - Government Promotion of Moral Issues
(Thorne Auditorium, Northwestern University School of Law)

Featuring: Prof. Lillian R. BeVier - University of Virginia
Prof. G. Marcus Cole - Stanford University
Prof. Lino A. Graglia - University of Texas
Prof. Steven Lubet - Northwestern University

Moderated by: Prof. Steven Calabresi - Northwestern University
Prof. Lubet was unable to attend, so FedSoc co-creator Prof. Calabresi stepped in for him on this panel. One of his points concerned people who get morality from the law. There are people out there who think "well if it's legal, it's gotta be okay to do." I never really thought about that before, but it scared the hell out of me. After studying law for a few years, I recognize the jumbled, and at times contradictory, mess that it can be. I don't care where you get your moral code (well, to an extent I care), just don't get it from the law.
4:00 p.m.: Panel - Morality of First Amendment Jurisprudence
(Thorne Auditorium, Northwestern University School of Law)

Featuring: Prof. Andrew Koppelman - Northwestern University
Prof. John McGinnis - Northwestern University
Mrs. Phyllis Schlafly - Eagle Forum
Prof. Geoffrey Stone - University of Chicago

Moderated by: Prof. Orin Kerr - George Washington University
I went into this panel knowing that it would be good. These are four people that have no problem speaking their minds. The panel focused on pornography and obscenity. Schlafly railed on the Warren Court for gutting obscenity laws. Prof. Koppelman, who is quite liberal, agreed that porn is harmful. I never realized this, but people like Schlafly with strong conservative views often find allies on this issue with very liberal feminists. Koppelman didn't go that far though. He sees porn as harmful but not enough to ban it. Prof. Stone then spoke, sans notes, and proposed a hypo: if there was no concept of obscenity in law, how would we go about creating one and for what purpose? Prof. McGinnis then screamed at us about federalism for a few minutes. If you haven't seen him speak, you don't know what you are missing. This was my second experience seeing Prof. McGinnis and it's always a treat. I agree with his substantive comments and love how animated he is.
6:00 p.m.: Cocktail Reception
(Chicago Marriott Downtown Magnificent Mile)

7:00 p.m.: Banquet, featuring Keynote Speaker
(Chicago Marriott Downtown Magnificent Mile)

Judge William H. Pryor, Jr. - Eleventh Circuit
The reception and banquet were fun. President Meyerrecognized the MULS crew as one of the chapters that brought 10 or more students. It was nice to get our name in there with all of those Top 25 schools. Prof. Orin Kerr was presented with the Paul M.Bator Award. The Federalist Society awards this to an academic under 40 for excellence in teaching, scholarship, and commitment to students. Judge Pryor was up next. He spoke about his time as Alabama Attorney General and the Moore/Ten Commandments monument controversy. I haven't been able to track down a transcript yet, but I'm watching the FedSoc site to see if it pops up.

I had a great time at the symposium. It was great seeing such an incredible line up of speakers and meeting so many interesting people. I'm sure that I will be making the trip to the Lawyer's Convention every year post-graduation. I may even go to the Student Symposium again. I met quite a few practicing attorneys there too. Next time, I'll even bring a note pad.

Friday, February 23, 2007 

This Weekend

I apologize for being neglegent in my posting this week. Oddly enough, I commented to a fellow law student recently how long it had been since the Supreme Court handed down a case. A day later, they dropped a ton of them on us. With my reading for class, I have barely even had the time to start reading the Philip Morris case. I'm not through it yet, but I'll join the chorus of commentators who are upset that Roberts and Alito signed on to a substantive due process decision. Politically, I'm not a big fan of unrestrained punitive damages. I've seen too many juries that "have something to prove" and deal out damages like someone drunk on power. But I can't agree that the Constitution places substantive restraints on those damages. Oh well, you can't expect absolute purity. That's just setting yourself up for heartbreak.

There will be no posts this weekend, as I will be in Chicago attending this year's Federalist Society Student Symposium. You can check out the MULS FedSoc blog for more details. I look forward to getting out of Milwaukee for a weekend, hearing some excellent speakers and debates, and maybe even having a little fun. I'll try to take notes and post about it when I get back.

Wednesday, February 21, 2007 

This Year's Hallows Lecture

The MULS Hallows Lecture was last night. I wasn't able to attend because I was in class, but the text of the speech has been posted on the MULS website. You can access it here. Judge Carolyn Dineen King of the Fifth Circuit Court of Appeals gave the talk, entitled Challenges to Judicial Independence and the Rule of Law: A Perspective from the Circuit Courts. I only had time to skim the speech, but it looks interesting and timely. Judicial independence seems to be on the minds of many, including Supreme Court Justices.

Tuesday, February 20, 2007 

Time to Vote

Hey, we've got an election today. That means that my favorite picture gets posted yet again. I know, it's not exactly apt. There are no goofy looking dinosaurs on the ballot this time (Barney and Joe Lieberman aren't on the ballot either). See what I did there? Zinging Chris Dodd like that? Anyway...

I'll be stopping by my polling place before class. By the time I get home tonight, we should know the results of the state Supreme Court primary. Everyone in this state has a lot at stake in the outcome of this election, and I doubt that 1 person out of 10 could name one of the candidates. That's pretty sad.

And if there was any doubt in anyone's mind, I'm voting for Judge Annette Ziegler.

Friday, February 16, 2007 

New Book About Justice Thomas

Those of you Justice Thomas fans out there should take note of a new book published by McFarland. The Supreme Court Opinions of Clarence Thomas, 1991-–2006 - A Conservative's Perspective is an analysis by law Professor Henry Mark Holzer of Justice Thomas' most important opinions. Here's the publisher's description...
In his fifteen years as an associate justice of the Supreme Court, Clarence Thomas has written nearly 350 opinions. Thousands of Thomas's eloquent and thoughtful words are thus available for Americans to examine. Yet much of the public still bases its opinion of Thomas on the words of the American media, going as far back as the bruising confirmation battle of 1991. Widespread, uncritical acceptance of glib assumptions has greatly distorted the record and even the character of this formidable justice.

This book offers readers the opportunity to consider the real Clarence Thomas—the formidable intellectual and defender of the Constitution, amply represented by his writings. It analyzes his most important majority, concurring, and dissenting opinions from 1991 through 2006. The author argues that Thomas's opinions reveal a consistent adherence to the principles of federalism, separation of powers, limited judicial review, and regard for individual rights as contemplated by the framers of the Constitution. An appendix contains a list of every opinion Thomas has written and notes whether it was a majority, concurring, or dissenting opinion.
This might be a good book for all those Thomas haters out there who keep repeating the old line that Thomas is just Scalia's clone. I don't think that anyone who has actually sat down and read the opinions written by these two men could say that.

Thursday, February 15, 2007 

New (to me) Law Blogs

It's always cool to find new legal blogs to read. I occasionally crab about how much material I have to plow through to find postable material. And it's true. It is time consuming. But there are those occasional days were I have a ton of free time and just want more legal stuff to read about online. Here are two blogs that I recently found.

Food Law Prof Blog. Food law! How can you not love that? Cloned food regulation, the FDA, and food safety laws... quite a line up. Sometimes it's cool to read about these weird law subsets. The material tends to touch on diverse areas of law, even though the material is under one umbrella topic.

That's What She Said. Fans of The Office will recognize this blog's title as Michael Scott's favorite catchphrase. This blog is run by labor lawyer Judy Elgar. After every episode of The Office, Elgar gives a summary of the possible liability issues and estimates how much it would cost to settle the case. Brilliant.

I'm going to add these two to my links as soon as I get the motivation to screw around with my template code.

Wednesday, February 14, 2007 

Olson Endorses Rudy

Ted Olson, former Solicitor General for the Bush Administration, has endorsed Rudy Giuliani for president. The two men aren't strangers...
Olson and Giuliani have been longtime friends since serving in the Reagan Justice Department from 1981-1983, when Olson was assistant attorney general in charge of the office of legal counsel and Giuliani was associate attorney general. Olson said they met with Attorney General William French Smith every morning and worked closely on a number of issues.
Olson is also vouching for Giuliani on an important issue: judges...
The support of Olson should help Giuliani in his quest to win over social conservatives who remain skeptical of his pledge to appoint strict constructionist judges.

"I've known him for 26 years and we've talked about this many times," Olson said. "He feels very strongly that people like Justice Scalia, Chief Justice Roberts, Sam Alito, Clarence Thomas, are the type of people that he would put on the court... I'm quite convinced that this is a genuine viewpoint that he has."
Olson also addresses the social issues where Giuliani and many conservatives have a disconnect...
"Rudy's views on many, many issues are going to be very compatible with people in the conservative political community and the political legal community. Nobody's going to be able to find a candidate with whom they agree with 100 percent on every issue. Overall, Rudy's strength of character, his capacity for leadership in a time when a strong executive is important, his energy level, his ability to provide the kind of leadership that Ronald Reagan did -- I think that is going to be very persuasive with conservatives."
Emphasis added. I've always held that belief. You are never going to agree with anyone on all of the issues. If you find yourself in lockstep, you might want to reexamine your positions and see if that's truly what you think.

Olson seems to be making a point (or maybe I'm just inferring one) by talking about the judges issue and the other "controversial" issues. In the end, it doesn't matter what Giuliani personally thinks about abortion, gay marriage, or whatever if those are the kinds of judges and Justices that he appoints. Whether that will actually come to fruition is another thing. No one really knows who he would name to the bench until he's in a position to do it.

Olson's word carries a lot of weight with many people (including me). So when he speaks, people will listen. It does say a lot that he would endorse Giuliani this early in the game. He must be convinced.


Why No McConnell

Marty Lederman recently kicked off a discussion about why Judge Michael McConnell is not Justice Michael McConnell. Supreme Conflict states that Deputy White House Counsel William Kelley (one of the nomination screeners) nixed McConnell for the Supreme Court because of one opinion. Prof. Kerr over at Volokh takes a look at that case, Lawrence v Reed.

Lederman's theory is that the Lawrence opinion made McConnell look bad on executive immunity issues in the eyes of the Bush Administration. And we all know how much the Bush Administration loves their executive power. Take a look at Lederman's post for a more detailed explanation. I won't try to rehash what he spelled out nicely.

So who is right, Greenburg's source in the book or Lederman? Or is it something simpler? I think that it's something simpler. Could Lawrence have spooked Kelley? Sure, it's plausible. Did one opinion tank the chances of a McConnell nomination? I doubt it. While incredibly qualified, McConnell has some major strikes against him before he ever even got on the Tenth Circuit. Those strikes had to do with his writings. As a law professor, McConnell produced volumes of material on various aspects of constitutional law. Robert Bork had a similar problem during his nomination. McConnell also wrote Wall Street Journal op-eds calling Roe v Wade illegitimate and calling Bush v Gore a muddled ruling. There was just too much material to use against him.
It's one thing to get on the Court of Appeals with these writings. You can say that you will follow and apply the precedent of the Supreme Court, not go off on your own. I believe that is what McConnell told the Judiciary Committee (or at least that's the short version of it). It's an entirely different ball of wax when you are nominated to the Court that makes those precedents. That Roe op-ed is particularly damaging. That isn't some esoteric law review article on the Necessary and Proper Clause. That is a short, to the point, written-for-mass-consumption opinion piece that can be e-mailed, forwarded, and read across the nation by Joe Six-Pack. While the arguments made by McConnell are well-reasoned and persuasive, they are too easy to soundbite and quote.

Personally, I think that those writings were strikes counted against McConnell before he even got up to the plate, or in this case, the bench. Any understanding that Kelley had about Lawrence was probably just the nail in the coffin.


State Supreme Court Election

This may come as a shock to many people, but we have a Supreme Court primary in a week. Next Tuesday, the field of three candidates will be knocked down to two. For those of you who really haven't been paying attention, the folks in the running are Judge Annette Ziegler, attorney Linda Clifford, and attorney Joseph Sommers. Letters in Bottles has a post that features a piece of campaign literature from the Sommers people. The flyer takes aim directly at Clifford. Aside from this flyer, the only other campaigning that I've seen or heard has been the radio commercials from the Ziegler people. The commercials are good for two reasons. One, they emphasize that Ziegler is the only judge in the race. And two, they say "Annette Ziegler" about 450 times in 30 seconds. Getting that name out there is important.

After the primary, I expect this race to really heat up. There is a lot at stake here. The retirement of Justice Wilcox puts a conservative seat up for grabs. On a court as closely divided as ours, every vote matters. Money is going to be poured into this state by various interest groups. Tons of attack ads will be run. Mud will be slung. It will be a grand olde election. When it's all said and done, the court will either be roughly where it was before or it will have shifted further to the left. Exciting, isn't it?

I probably won't post much about the race though. I feel a little weird about it, since I'm going to be a member of the bar soon (God willing). One should always be mindful of the toes they are about to step on. But I may change my mind. Anyone who has even the most superficial understanding of my legal views knows who I'm voting for anyway.


In Honor of Valentine's Day

I occasionally like to post law-related stories on here that have sort of a sick and twisted aspect to them. Long time Eminent Domain readers will remember my series of posts about the undercover cops in Pasco County busting strippers for giving a little "extra effort," if you get what I'm saying. I ran into this sordid little tale the other day. An Irvine cop ejaculates on a motorist but escapes criminal liability. Get ready for a roller coaster ride...
When the case went to trial, however, defense attorney Al Stokke argued that Park wasn't responsible for making sticky all over the woman's sweater. He insisted that she made the married patrolman make the mess-after all, she was on her way home from work as a dancer at Captain Cream Cabaret.

"She got what she wanted," said Stokke. "She's an overtly sexual person."
Two observations. One, Captain Cream Cabaret is a great name for a club. I love alliteration. Two, Stokke, the defense attorney, is a real piece of work. To prove that I'm not just posting this for shock value, I'm going to give some analysis about his defense strategy. But first, here's what the state has to say...
Veteran sex crimes prosecutor Shaddi Kamiabipour-who'd called Park "a predator" during the nine-day trial-said she was disappointed with the verdicts. She also dismissed Stokke's contention that the Orange County District Attorney's office had overcharged the case. At stake, Kamiabipour said, was the principle that no one—not even a horny cop who'd once won honors for community service-is above the law.

"Park didn't pick a housewife or a 17-year-old girl," Kamiabipour said in her closing argument. "He picked a stripper. He picked the perfect victim."
This can be a major problem in a criminal trial. In the eyes of many people (jurors), stripping is not a highly regarded profession. A social stigma like that follows you all the way into the court room. The same thing happens with people who have committed crimes in the past. It's hard for juries to not have their perceptions colored by these facts.

Now for the defense...
It wasn't a surprise that Stokke put the woman and her part-time occupation on trial. In his opening argument, he made it The Good Cop versus The Slutty Stripper. He pointed out that she'd once had a violent fight with a boyfriend in San Diego. He mocked her inability to keep a driver's license. He accused her of purposefully "weakening" Park so that he became "a man," not a cop during the traffic stop. He called her a liar angling for easy lawsuit cash. He called her a whore without saying the word.

"You dance around a pole, don't you?" Stokke asked.

Superior Court Judge William Evans ruled the question irrelevant.

Stokke saw he was scoring points with the jury.

"Do you place a pole between your legs and go up and down?" he asked.

"No," said Lucy before the judge interrupted.

"You do the dancing to get men to do what you what them to do," said Stokke. "And the same thing happened out there on that highway [in Laguna Beach]. You wanted [Park] to take some sex!"

Lucy said, "No sir," the sex wasn't consensual. Stokke-usually a mellow fellow with a nasally, monotone voice-gripped his fists, stood upright, clenched his jaws and then thundered, "You had a buzz on [that night], didn't you?"
Emphasis added. Who talks like that? Anyway, you can see the strategy here, right? Tar and feather the victim. Make her look as bad as the jurors are imagining that she is. And it works. The rest of the article contains all of the background information about the incident. It's worth a read.

Stories like this do tend to get people jaded about the justice system. At least that was my response to it. Based on what I've read in the article (and I admit that it's an incomplete accounting of the evidence), I think that this was a horrible decision by the jury. But that's the system we've got. It's a human-designed system with humans at the switch in every step. Bias will leak into it.

My original title for this post was "Talk about a Sticky Situation" but I felt that was going too far.

Friday, February 09, 2007 

Here's to You

Well, it's the end of an era, the Dennis York era. If you haven't heard, Dennis York, the now-not-so anonymous blogger, has decided to call it quits. "York" recently gave an interview to the Wisconsin State Journal, IDing himself as Capitol staffer Christian Schneider. The York blog managed to bridge the gap of information and humor, taking on everything from political issues to parts of Schneider's personal life. It's not easy to write about something like politics (or the law), stay informative, and still find time to inject some humor into the mix. I try, succeed occasionally, fail spectacularly more often. Schneider made it work. That takes a hell of a lot of skill.

Oddly enough, I very recently re-read one of my favorite York posts, Geena Davis Urges Feingold to Pull Out. I'm not sure what made me track it down, but I'm always up for a laugh at Feingold's expense. It still made me laugh. It's worth a read, even though Commander in Chief isn't exactly part of pop culture anymore. Thanks for the time and effort behind the keyboard, Chris.

Thursday, February 08, 2007 

Walking on Allah

The Volokh Conspiracy has been blowing up today with posts about a controversy at San Francisco State University. The whole mess stems from one of my favorite parts of campus life, the student protest. Here's what went down...
The College Republicans "offense" took place on October 17, 2006, when they held an anti-terrorism protest in SFSU'’s Malcolm X Plaza. During the protest, several members of the group stepped on butcher paper they had painted to resemble the flags of Hamas and Hezbollah. Unbeknownst to the protestors, the flags they had copied contain the word "Allah" written in Arabic script.
The CRs were charged with violations of university policy for "attempts to incite violence and create a hostile environment" and "actions of incivility" in violation of the Standards for Student Conduct. The investigation portion of this drumhead has ended and now the complaint is being sent to the Student Organization Hearing Panel for review" and "possible disciplinary proceedings."

Prof. Volokh, a widely respected First Amendment scholar, has this analysis in the comments section...
Indeed, no discipline has been implemented yet. But what would we think if SFSU had sent into "possible disciplinary proceedings" a complaint that someone was expressing anti-American views (e.g., stepping on an American flag) or anti-Administration views (e.g., stepping on a picture of President Bush)? I take it that we'd recognize that even having a "Hearing Panel" look into the results of an "investigation" that might lead to "possible disciplinary proceedings" would be improper -- the university should have just dropped the complaint, on First Amendment and academic freedom grounds. Likewise here. How free is speech about religion going to be at SFSU if students know that when they say religiously offensive things that are alleged to create a "hostile environment" or to be "incivil," they can be haled in front of a "Hearing Panel" with the prospect of "possible disciplinary proceedings"?
That situation (threating to punish anti-American or anti-Bush views) would probably never happen on the vast majority of college campuses. Those views can be expressed with impunity, as they should be. However, the young leftists of America and university administrators need to understand that the door swings both ways at public universities. The right can say things that piss you off and you can't punish them. You have recourse, though. Speak out against them. Try to make a better argument or show why theirs is wrong. That's what a confident, intelligent individual would do. A confident, intelligent individual certainly wouldn't run off to the administration and whine like a little baby.

Here is more from Prof. Volokh...
Note also that the university is not simply trying to prevent violence here (which it in any event should do by preventing and punishing the violent responses to offensive student speech, not by punishing the speech itself, at least unless it fits within the narrow category of individually addressed insulting "fighting words," which doesn't apply here). The university is expressly investigating (with the threat of formal sanctions behind the investigation) the possibility that the students' speech is ideologically offensive -— creates a "hostile environment" and is "incivil[]." A clear First Amendment violation, it seems to me.
Unsurprisingly, I agree with Prof. Volokh. As FIRE points out (quoted in Volokh's post), burning the American flag is protected speech under the First Amendment. And I agree that it is. I also think that these actions against representations of Hamas and Hezbollah flags fall under the same protection. Prof. Volokh has a follow up post explaining the idea of "expressive conduct" under the First Amendment. That's the classification that all this monkey business with the flags would get.

This part of the e-mail from the Office of Student Programs and Leadership Development really pissed me off...
Please keep in mind Carl that you as a student organization have the right to have a representative at any stage of possible disciplinary proceedings. However, attorneys are not permitted as representatives in this process.
Okay, you are subject to a quasi-judicial process with the possibility of significant punishment, but you can't have legal counsel. Sounds fair to me.

Prof. Volokh finishes off his triad of posts about this topic by comparing the SFSU rules to anti-blasphemy laws...
As to the disciplinary action contemplated by SFSU, and FIRE's reaction to it:

The university's response [to FIRE]? Spokesperson Ellen Griffin told me, "The university stands behind this process."

And: "I don't believe the complaint is about the desecration of the flag. I believe that the complaint is the desecration of Allah." ...

Sounds to me like SFSU is acknowledging that under SFSU rules, desecrating Allah -— or, to be precise, desecrating religious symbols -— is indeed prohibited. Everything old (here, blasphemy bans) is new again.
Personally, I think that the actions of the CRs were childish and kind of dumb. But in fairness, I think that the vast majority of college protests are childish and kind of dumb. You can watch video of it here and here. Wow, campus liberals calling campus conservatives "racists." Campus conservatives calling campus liberals "communists." There is nothing new under the sun...

Dumb or not, whether I condone it or not, the protest and the flag stompin' were protected speech under the First Amendment. SFSU has already screwed up by continuing this kangaroo court process. If the CRs get punished, the screw up will be complete. This will be nothing more than left wing authoritarianism on a college campus.


Falwell: 2008 is About the Court

Proving the old adage that even a broken clock is right twice a day, Jerry Falwell correctly pointed out that the 2008 presidential election will determine the balance of the Supreme Court. In his interview with Reuters, Falwell made it clear that he can count the votes on the highest court in the land...
"It is a long road back. We are at least one U.S. Supreme Court Justice short of a socially conservative court," Falwell said on the sidelines of an evangelist conference in Dallas.
Falwell is far from my favorite person in the world, but I'll agree with him when he's right. The 2008 election will determine the direction of the Court. Justice Stevens is turning 87 in April and Justice Ginsburg is turning 74 in March. Even if they remain on the Court until 2008 (which I think is likely), it will be quite a feat to stay on until 2012. If a Republican president appoints one or both of their replacements, that will shift the balance of the Court drastically to the right. If a Democratic president appoints one or both of their replacements, that will secure those votes for the liberal camp for decades to come. There's a lot at stake in this election.


Hands-On Con Law

Glenn Reynolds is probably the coolest Constitutional Law professor ever...
I took my advanced constitutional law seminar to a shooting range a few years back (we were studying the right to bear arms) and rented an MP5 for the students to shoot. It's only a submachinegun, but I picked up the ammo tab and it was over 200 bucks. But they enjoyed it.
Very cool.

Wednesday, February 07, 2007 

Fun at Depos

Professor Bainbridge posted this video from a deposition. The professor says...
I have no idea who the party is or what the dispute was about. In any case, it starts out pretty boring, but you must watch it all the way to the end, where it becomes one of the all-time great answers to a deposition question (and an answer that I have more than once wanted to give at one of my expert witness depositions)
Who says that depositions have to be boring?


"I Never Read Dissents"

The young lady sitting next to me in Crim Pro said that to me tonight before class. Our row was on call for Wheat v United States and she decided to skip the dissent by Justice Marshall (which is usually a good practice, unless you're on call). Being the nice guy that I am, I gave her the 90 second version of the dissent.

That little episode made this post by Prof. Althouse jump out at me. Quoted are remarks by Justice Alito concerning those pesky dissenting opinions. Prof. Althouse then throws out some questions about dissents...
So, dissenting opinions: vanity or dishonesty? I think it's somewhere in between. It's not really dishonest to sign on even though you disagree. Once a majority of the Justices have one opinion, it will be the precedent in future cases, and you'll cite it and follow it then. What difference does it make if you start following it before it issues? Should you always do that then? Should we agree with the unnamed Third Circuit judge who said that dissenting opinions were nothing but vanity? I'd say that is going too far, but reading dissenting opinions, you can encounter a lot of unseemly preening.
She also then quotes part of Justice Brennan's later views on dissents...
"At the heart of that function is the critical recognition that vigorous debate improves the final product by forcing the prevailing side to deal with the hardest questions urged by the losing side."
Personally, I like dissents. First, they are usually much more fun to read, especially with the right judge or Justice at the pen. Second, they do also give you an idea of where the courts may go with the law. Read a dissent and then count the votes. In time, those Justices may pick up a colleague or two and turn that dissent into a majority. They also plant the seeds of dramatic future change and rethinking of the law. Those of us with an interest in First Amendment jurisprudence can see how dissents, like those of Holmes and Brandeis, can eventually become not only majority views but almost unquestionable majority views. Things change, and dissents can give us a road map for that change.

Tuesday, February 06, 2007 

Bashman on Judges

Howard Bashman, czar of the must-read How Appealing blog, has a great article on entitled "For Federal Appellate Judicial Nominations, It's a Time for Pragmatism." I spent the better part of November writing about the appeals court nomination landscape, post-election. If you missed those posts or just want to relive their splendor, you can find all four in the Least Worst section. If I told anyone how long Part 3 took to write, they would have me committed.

Bashman's article sets the scene, describing the January withdrawals of a handful of the "controversial" judicial nominees...
With these latest withdrawals, the number of federal appellate court nominees for whom the Bush administration has failed to attain confirmation for lifetime seats on the bench increases to seven. What is even more significant, however, is that there are now 17 vacancies on the federal appellate courts, but the Bush administration currently has pending only five nominations to fill those vacancies.
I talked about this in my quartet of posts. The vacancy situation is at near crisis state. The White House may have other priorities right now, but they need to at least get a couple of interns working on this judiciary thing. Hell, I'll do it if they are strapped for people. Significant movement must occur soon.

Bashman then reminds us of the good times...
Of course, the Bush administration has achieved some notable successes thus far. The two most obvious examples now serve on the U.S. Supreme Court: Chief Justice John G. Roberts Jr. and Associate Justice Samuel A. Alito Jr. And on the federal appellate courts, young conservative Bush appointees include D.C. Circuit Judge Brett M. Kavanaugh, 5th Circuit Judge Priscilla R. Owen, 6th Circuit Judge Jeffrey S. Sutton, 7th Circuit Judge Diane S. Sykes, 8th Circuit Judge Steven M. Colloton, 10th Circuit Judges Michael W. McConnell and Neil M. Gorsuch, and 11th Circuit Judge William H. Pryor Jr.
That's a list that brings a smile to my face. It probably makes Ralph Neas cry. I'm okay with that.

Back to the bad news. There are some circuits teetering on the brink right now...
The number of existing vacancies threatens to wreak havoc on two regional federal appellate courts in particular. The Richmond, Va.-based 4th Circuit currently has four vacancies (counting a judge who has declared the intent to take senior status when a successor is confirmed) for which there are no nominees, while the Philadelphia-based 3rd Circuit has three vacancies for which there is only one nominee.
The Fourth Circuit is one of the most conservative courts in the country. However, the many vacancies have caused things to tighten up ideologically. The Third Circuit is also incredibly close. If the White House fails to act on these vacancies, the ideology of those courts may shift. This would be a huge loss. Those of us who spend our free time on Wikipedia counting votes on appeals courts would be quite upset.

Bashman's advice to the White House: be practical...
After more than six years of trying to place highly intelligent individuals with a conservative outlook onto federal appellate courts, the administration should now consider becoming more practical -- and should think about opting for second best when its top choice appears too controversial to attain confirmation in the current political climate. This pragmatic approach would reflect political reality, possibly maximize returns in an arena where the opposing political party now controls the agenda, and prevent the nomination decision from falling into the hands of a new president who might not share the current administration's views on the proper role of federal appellate court judges.
Well said. He even has a few recommendations...
It is of course possible that a few impeccably credentialed federal appellate court nominees who are especially to the liking of the White House can still be confirmed in the time that remains. In this category I would place D.C. Circuit nominee Peter D. Keisler and Solicitor General Paul D. Clement.
Keisler is one of the current nominees that is worth fighting for and is confirmable. Paul Clement is insanely qualified for the federal bench and should be nominated to the Fourth Circuit. Losing him in the SG's office is not going to be easy for the Bush Administration to take, but he can do more good on the bench.

Bashman's advice is on point. These vacancies need to be filled now. If the White House waits, the Democrats will try to run out the clock. Then President Clinton can nominate judges that reflect her judicial philosophy. And that... that's bad.


What Is in Leahy's Head

Both Confirm Them and How Appealing have links to Senator Pat Leahy's recent statement as Chairman of the Judiciary Committee. Let's play "selective quoting for humorous effect," one of my favorite text-based games. The set up...
I know some on the other side of the aisle have tried to raise a scare since I, again, became Chairman of the Judiciary Committee. They rant as if the sky is falling and we would not proceed on any judicial nominations. We have proceeded promptly and efficiently.
Followed by...
I have also urged the President to nominate men and women to the federal bench who reflect the diversity of America.
And now the punchline...
And out of the 875 seats on the federal judiciary, there are only five active Asian-Pacific American judges on the federal bench, less than 1 percent of all federal judges. President Bush has nominated only 2 Asian-Pacific American candidates, neither to a seat on a federal circuit court. With outstanding lawyers like Dean Harold Koh of Yale, Professor Goodwin Liu of Boalt Hall School of Law at University of California at Berkeley, or attorneys Karen Narasaki, John Yang and Debra Yang, it is not as if there is a dearth of qualified candidates who would be universally endorsed.
Asking George W Bush to nominate Harold Koh and Goodwin Liu to the judiciary is like asking Bill Clinton to nominate Robert Bork and Michael Luttig. It's laughable. It's absurd. It's just a stupid thing to say. While I must give Koh his due for his career accomplishments, I have no fondness for the man. His treatment of Justice Scalia during a Yale Law event was pretty low. Oh, but I'm sure that the White House has him high on the "to nominate" list, Senator Leahy. Sure.

I join in the chorus of my friends over at Confirm Them... Leahy wants Asian Americans on the federal bench, then Bush should nominate Viet Dinh to the Fourth Circuit. "Hey, you asked for it..."


Tommy at MULS

This was in my e-mail inbox today...
Join former Wisconsin Governor Tommy Thompson and
the Law School's Mike Gousha
to find out why the former Wisconsin Governor is running for President.

Thursday, February 22
12:15 p.m.
Room 307, Law School.
A complimentary light lunch will be provided.

The political pundits call him a dark horse candidate and say he doesn't have a shot. But Tommy Thompson hopes to prove the experts wrong. It's an informal and candid discussion of Thompson's political aspirations, his tenure as Wisconsin's longest-serving Governor, and his years as Secretary of Health and Human Services in the Bush administration.
My reservation for the program has been made. I'm interested to hear what Double T has to say. It's nice to have Mike Gousha working at the law school now. He's got the pull to get big name visitors.

Monday, February 05, 2007 

A Conflict Supreme

Over the weekend, I plowed through Jan Crawford Greenburg's book Supreme Conflict. I'm a step behind much of the legal blog world, but hey I have a social life. Most law bloggers that have read the book have given it rave reviews. I gladly join that chorus. The book tells the story about the modern battle for control of the Supreme Court. It tracks Supreme Court politics and history from O'Connor to Alito, focusing on the nominee selection process within the White House and the internal Court dynamics. I'd recommend it to anyone with an interest in the Supreme Court.

In the future, I'm sure that I will refer back to the book when discussing the Court, just as I have referred to The Brethren and A Court Divided. Right now, I'd like to focus on a review of the book that I saw linked on How Appealing. Edward Lazarus isn't exactly kind to Greenburg's book. I'm sure that has nothing to do with the fact that Supreme Conflict has received more attention than Lazarus' book, Closed Chambers. Nothing at all. Here's some of his criticism...
Greenburg's book comes hyped as the latest iteration of The Brethren, the 1979 book by Bob Woodward and Scott Armstrong that was the first to crack the court's locked-up and buttoned-down culture. Greenburg interviewed nine justices for her book, no mean feat. The problem is that they don't seem to have told her anything very enlightening. The story she tells about the modern court—with the important exception of her view of Clarence Thomas—is familiar to anyone who follows the court.
I don't agree with this at all. If Lazarus knew about the Rehnquist-O'Connor retirement dynamic, I don't remember him talking about it. In the book, Greenburg discusses the end of the 2004 term. Earlier, Rehnquist and O'Connor had discussed retirement in general. Rehnquist said that the Court didn't need two vacancies at the same time. O'Connor went to Rehnquist and told him about her desire to retire in the near future, maybe in one year. She assumed that the ailing Rehnquist would call it quits at the end of the term, let her stay on one more year, and then she could retire. Nope. Rehnquist told her that he wanted to stay one more year. That meant that O'Connor had to retire now or serve two more years. With her husband's health deteriorating, that just wasn't going to happen. Basically, Rehnquist eased her out the door. Good man.

Beyond this story, the book is full of behind the scenes bits of information that even I, complusive Court fan that I am, wasn't privy to prior to reading it here. There is a lot of talk about the other potential Supreme Court nominees and why they weren't selected. That information was very enlightening, and now I understand why the White House made the decisions that they did.

Here is more beef from Lazarus...
Her dogged insistence on describing every act of every justice as either "liberal" or "conservative" distorts the court's debates. Rehnquist and Scalia, for example, may both fairly be described as "conservative," but Scalia's conservatism is tempered by a libertarian streak foreign to Rehnquist. Greenburg misses how these crosscurrents affect the court's decision-making.
That's pretty nitpicky. Yes, each Justice (even Rehnquist) has or had jurisprudential quirks that casts them outside of the conservative or liberal labels. Scalia's criminal procedure views can be very non-conservative. Stevens' stance on flag burning is very non-liberal. It's still possible to put the Justices into categories based on the majority of their rulings.

If you have any interest in the Court or judicial nominations, definitely pick up the book. Or just pick it up to make Edward Lazarus crabby. Whatever.


Coming to an End

SCOTUS has posted the schedule for the Supreme Court's April oral arguments. These are the last oral arguments of the terms. After that, the Justices work diligently to pound out those opinions by the end of June. Here's what's on the docket...
Mon., April 16
05-85 -- Powerex Corp. v. Reliant Energy Services -- definition of how a foreign business firm may qualify as an agent of a foreign government for purposes of U.S. court jurisdiction
06-593 -- Long Island Care at Home v. Coke -- right to overtime pay for home care workers who are employed by agencies, not by families

Tue., April 17
06-340 and 06-549 -- National Association of Homebuilders v. Defenders of Wildlife and EPA v. Defenders of Wildlife -- duty of federal agencies to avoid harms to endangered species (Consolidated for one hour or argument)
06-531 -- Struhs v. Wyner-- nature of victory in court needed to justify attorney fee shifting
(afternoon) 06-413 -- Uttecht v. Brown -- federal court authority to overturn state judge's removal of a juror in a murder trial

Wed., April 18
06-427 -- Tennessee Secondary School Athletic Assoc. v. Brentwood Academy -- prep schools' right to recruit student athletes despite a state policy forbidding it
06-341 -- BCI Coca -Cola Bottling v. EEOC -- employer liability for alleged bias of subordinate who did make the actual employment decision at issue
(afternoon) 06-6407 -- Panetti v. Quarterman -- constitutionality of executing a death row inmate who has a delusion about why he is being executed

Mon., April 23
06-562 -- U.S. v. Atlantic Research Corp. -- right of a company responsible for hazardous waste deposit to sue to share clean-up costs with others
06-8120 -- Brendlin v. California -- authority of police during traffic stop to order passengers out of car
(afternoon) 06-376 -- Hinck v. U.S. -- Tax Court jurisdiction over claim to relief from assessed interest on taxes due

Tue., April 24
06-134 -- Permanent Mission of India v. City of New York -- immunity from local property taxes for foreign embassy properties used as diplomats' residences
05-1448 --- Beck v. PACE International Union -- pension plan sponsor's duty to consider merger as a way of terminating the plan without ending benefits
(afternoon) 06-618 -- Office of Dayton v. Hanson -- Speech or Debate Clause application to congressional employee's job rights lawsuit; also, mootness and jurisdictional issues

Wed., April 25
06-969 and 06-970 -- FEC v. Wisconsin Right to Life and McCain v. Wisconsin Right to Life -- constitutionality of federal ban on broadcasts planned for airing in election season, when the ban is applied to specific broadcasts (Consolidated for one hour of argument)
05-1284 -- Watson v. Philip Morris -- right to move a state case to federal court when it involved actions by a private entity acting under mandate of a federal agency
I will be watching three of these cases closely: the consolidated National Association of Homebuilders v. Defenders of Wildlife and EPA v. Defenders of Wildlife, Brendlin v. California, and the consolidated FEC v. Wisconsin Right to Life and McCain v. Wisconsin Right to Life. The notoriously litigious Defenders of Wildlife are always suing someone over federal environmental law. After last term's Rapanos decision, I'm eager to see what the Roberts Court does with this. Brendlin caught my eye because it seems like an interesting case that will affect more than just law nerds who love Con law. I had a feeling that the Right to Life cases would be the last ones argued. I get the feeling that the decision will be one of the last handed down as well. Of course, I am actively rooting for the FEC, McCain, and Feingold to get their noses rubbed in it over their atrocious law. Come on, Court. Don't fail me now.

Friday, February 02, 2007 

Romney on Judges

Confirm Them has a link to a statement by Governor Mitt Romney about the type of judge that President Romney would put on the federal bench. I posted Rudy Giuliani's statement on the topic earlier and plan on keeping this up as I find these quotes from the would-be Commanders in Chief...
I think the justices that President Bush has appointed are exactly spot-on. I think Justice Roberts and Justice Alito are exactly the kind of justices America needs. They're people who believe that the Constitution is what they're to follow, not what they're to depart from; people who do not believe that legislation from the bench is the responsibility or authority of being on the bench. I respect legal scholars of all backgrounds, but those who are going to be on the bench, if I were lucky enough to appoint them, would be people who believe their job is to follow the law and follow the Constitution.
I have a feeling that we're going to here this line a lot. Judicial nominations is probably the one strong issue that Bush still has. I think that the base is very happy with their two relatively young Supreme Court Justices and wants their 08 nominee to keep the trend going.


Rethinking Roe

How Appealing recently linked to this article in the Yale Daily News entitled "Roe backers shouldn't focus on Constitution." Author Roger Low has some interesting things to say about abortion rights, the Supreme Court, and the politics of the whole situation.

After describing a Roe celebration week at Yale, Low (a supporter of legalized abortion) brings up his major gripe...
Ever since Justice Harry Blackmun wrote his landmark decision in Roe, the national women'’s equality movement has seized on the case as one of the century's most important benchmarks for social progress. There's just one small problem: Blackmun's Roe v. Wade opinion is a constitutional disaster.
Low then makes many of the same criticisms of the Roe opinion that academics, liberal and conservative alike, have made in the past. I still remember the day in Con Law during my first year of law school when my fairly liberal professor ripped the opinion to shreds. There were shocked looks on the faces of more than a few of my fellow students.

Low focuses on how damaging Roe and its progeny have been to Supreme Court politics...
The Supreme Court's 1973 decision has been terrific for pregnant woman, and slightly less so for our national judiciary. The sudden willingness of the Supreme Court to illegalize abortion based on a new interpretation of the Constitution has been a driving factor in converting Supreme Court nominations into the polarizing partisan slugfests they have become.
That's very true. It's a position that I have held for a long time. Here, I'm going to quote myself...
Abortion jurisprudence has poisoned our federal judiciary. Until this issue is purged from the courts and put back into the hands of the public, every Supreme Court confirmation hearing will be about Roe and little else.
Low's article is great up to this point. It says nothing new, but it's a well-crafted statement. Then he gets very thought provoking...
My question is this: Why are we on the pro-choice side of the battle so determined to win this fight in the courts? Why are we determined to fight our battle on constitutional grounds, exactly where we are weakest?
It's rare in this day and age to see this kind of intellectual honesty. He continues...
Rather than hide behind Blackmun's convoluted logic and let the opponents of abortion use "elitist judges" as a punching bag and red herring with which to distract people from the real issues, why not try to win this fight the good old-fashioned way - through democratic elections? The best plausible rationale for using courts - that the rights of a minority are under siege - is hard to swallow when you consider that half of the voting population lacks a Y chromosome.
Low closes by saying that the pro-choice side can win the argument through the democratic process. If that is true, why wouldn't more pro-choice folks support his position?

I think that there are a few possibilities here. It is possible that Low is wrong, or at least, not as right as he thinks he is. In the past, there has been broad public support for restrictions on abortions that haven't survived the Roe/Casey gauntlet in the courts. Low's compatriots see this as proof that the public at large doesn't share their expansive view of abortion rights.

It is possible that Low's compatriots just don't want to risk even the possibility that legislatures would restrict abortions. Remember that the country is not homogeneous. A legislature in Massachusetts would enact different abortion restrictions than a legislature in Alabama. Maybe that is what Low's compatriots fear.

It is also possible that the current Constitutional framework is simply the easiest road to take. The right is already there, the Court is still at least one vote away from greatly upsetting the Roe/Casey framework, and judging by the leakers running for the Republican nomination, Hillary Clinton will be putting Judge Berzon on the Supreme Court ASAP. Why would pro-choice supporters want to duke it out in 50 state legislatures to get what they already have? Those are just the possibilities that occurred to me in the short time I thought about Low's questions.

About me

  • I'm Steve
  • From Milwaukee, Wisconsin, United States
  • "There is only one basic human right, the right to do as you damn well please. And with it comes the only basic human duty, the duty to take the consequences." P.J. O'Rourke
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