Snyder v. Phelps

As many of you probably know, the Phelps case is set for oral argument today at 10 a.m. Scotusblog has an excellent in-depth analysis of issues and arguments by both sides. Basically, what is at stake is whether funerals will receive some level of heightened protection from protests or that there is a "funeral exception."

Not surprisingly, I am not a fan of Phelps and I finds his beliefs indefensible and outrageous. I wish the 'free speech' side had a more likable and sympathetic advocate, but that is not the case. While I find Snyder's arguments to be decent and compelling, I am not sure that I want to carve out an exception for funerals and wonder if the better approach would be to go after the Phelps cult in a different manner. What do you think?

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Kagan

Obama's second SCOTUS nominee, Elena Kagan, heads to The Hill today for her first grilling.

Much has been made of her "lack of paper trail" and that she is not a judge (I'd point out that O'Connor wasn't a judge until she was appointed to SCOTUS either), so I did some sniffing around for the "body of work" that people claim she lacks and found Volokh article. Though I disagree with Volokh on many issues (despite the fact that I can't hold a candle to his arguments!), I at least trust his analysis and find that 90% of the time, he makes spot-on, in-depth remarks (for instance, I disagreed with his rant about racial IQ differences).

Of Kagan, Volokh says:

[Elena Kagan's]articles go behind glib generalizations and formalistic distinctions and deal with the actual reality on the ground, such as the actual likely effects of speech restrictions, and of First Amendment doctrine...This is legal scholarship as it should be, and as it too rarely is.

He disagrees with her 1st amendment works, ultimately, but admires them for their clarity of argument.

I bet, however, we don't get that line of questioning from teh august body of Congress. I bet we get a lot of "why do you hate the military" and "are you teh ghey."

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Juvenile Justice

Smitty gave me a heads up that The Supreme Court was hearing oral arguments in Graham v. Florida (08-7412) and Sullivan v. Florida (08-7621). These cases dealt with the Constitutionality of imposing a life sentence without the possibility of parole on a juvenile. I told Smitty that it was interesting that issue has never come up, but he suggested that those kind of sentences were probably not used on juveniles until relatively recently.

Scotus Blog has an excellent analysis or the arguments and discussions. If you are interested in the briefs and petitions filed up until now, I would suggest checking out scotuswiki. Last, but not least, NPR has a good article on the background of the two petitioners, Terrance Graham and Joe Sullivan.

The NPR article is a good place to start. Not surprising, Florida has 70% of the juvenile offenders locked up for life for crimes other than murder. Graham was convicted of armed robbery and Sullivan for raping an elderly woman. Neither person, in my mind, garners a whole lot of sympathy, but the question then becomes is it reasonable to lock them up and throw away the key?

Scotus Blog details some of the arguments made. For the State of Florida:

The state of Florida’s lawyer, Solicitor General Scott D. Makar from Tallahassee opened his argument by contending that a categorical bar on life-without-parole for minors would run counter to trends in treating juveniles over past couple of decades, frustrating states in their attempts to deal with rising juvenile crime while still remaining sensitive to the needs of youthful offenders.

Interesting, as most studies show that juvenile crime is the lowest it has been in years. Additionally, I don't believe that life sentences are a deterrent to a juvenile that is considering a criminal act. The justices seemed to vary in opinion from some supporting developing a bright line rule that would prohibit these sentences below a certain age. The Chief Justice seemed to prefer:

...to recruit a majority of the Supreme Court in favor of giving juveniles more chance to use their age to challenge life-without-parole prison terms, as an alternative to a flat constitutional bar against ever imposing that sentence.

There was this exchange with Sotomayor:

After Makar had said that Florida acknowledged that youthful age “does matter,” Justice Sotomayor asked for help in drawing the line where life-without-parole would be permissible. Would it be unconstituional if the youth were only 10? she asked. If that is too early, she said, why would 14 or 15 not be too early? Makar would only concede that “I think it [age] does matter.” Sotomayor was not satisfied, next asking about a no-release sentence for a five-year-old.

A five year old? I am sure that Sotomayor well knows that a 5 year old lacks the ability to form an intent to commit a crime. This seems like she wanted to be melodramatic. Lighten up Sonia.

I think the Founding Fathers did a good job in phrasing the prohibition against cruel and unusual punishment. They allowed for changes in society, as opposed to defining what was specifically cruel and unusual. In the late 18th century, all felonies were punished by death and children could receive pretty harsh punishments. Even as late at the early 20th century, punishments for juveniles were severe and due process was almost non-existent. Gradually, procedural safeguards were set up and, most recently, the Supreme Court said the death penalty could not be applied to juveniles.

I am leaning towards a ban on life sentences without parole for juveniles. Courts already have discretion in charging people under the age of 18 as adults. Most of the time, going through the juvenile system offers more flexibility in terms of treatments and punishments. While there are some youths that are likely incorrigible, this is hard to predict and there are certainly crimes that call for a life sentence. The problem is that I see too much potential for abuse, especially in a high profile case. What do the ATK readers think?

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Sotomayor to be sworn in today

Sotomayor to be sworn in August 8

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While not a supporter of her, I wish her the best.

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Sotomayor and Fundamental Rights

Randy Barnett, over on Volokh, has a good take on part of the Sotomayor hearings. It deals with a line of questions from Orrin Hatch and Russ Feingold. Unlike some past hearings, these were really good, substantive question, especially the ones from Feingold. Barnett points out that:

more than once she said a right was "fundamental" if it was "incorporated" into the fourteenth amendment.

I agree with the author...that is backwards. A right is incorporated if it is fundamental. I am not sure if she just didn't understand the question or it is her belief that a right isn't fundamental unless a court says the 14th Amendment "incorporates" it. I hope it is not the latter, because that would most certainly go against majority opinion.

Read the excerpts from the article. Again, I tend to agree with the author. Sotomayor gives responses that are totally lacking in substance. I can understand a desire to be cautious, but the questions being asked here are fair, relevant, and important. She owes us a decent effort and well-thought out answers.

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Sotomayor and the Ricci Case

The Supreme Court handed down a major decision a few days ago that pertains to Title VII and racial discrimination. The case, Ricci et al. v. DeStefano et al., has been getting a lot of press. The case can be found here. It is a long one, at 93 pages, so I will forgive you if you don't read it. Scotusblog has one of the more objective views of the case and summarizes the main points and holdings. The Court has long held that any kind of race-based selection criteria will not be allowed unless there is a substantial amount of evidence that it is necessary to remedy a past discrimination. In applying this to the Ricci case, they said an employer may not refuse to hire or promote whites unless the criteria is skewed against minorities and they are at risk of being sued. In this case, the Court felt that the fire department did not meet this criteria.

Volokh has some good analyses here and here. The second article is especially interesting, in that it uses this case to refute the notion that the Roberts Court is pro-business. Another factor that has popped up is how this will influence the Sotomayor nomination. She was part of the 2nd Circuit Panel that was overturned by the Supreme Court. One complaint is that panel she was part of initially wanted to dispose of this case with an unpublished, unsigned summary order. Eventually, they settled on a one paragraph opinion. The fact that the Supreme Court had such a difficult time with this issue (in both the majority and dissenting opinions) suggests that it may not have been the no-brainer that Sotomayor's panel thought it was.

That being said, there are plenty of legal scholars that support her position and 4 of the liberal Justices agreed with her. She has not really surprised anyone here. I think her lack of analysis on this issue isn't good, but it doesn't rise to the level of a disqualification. It would be different if this was part of a pattern, but I don't think it is. Obama has the votes in the Senate to get this nomination through. Unless it is discovered that she has been taking trips with Gov. Sanford, I think it is inevitable that she will be on the Court.

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Honest Fraud (or What I Did on my Summer Vacation).

Sorry I haven't been much of an active participant in recent months, but my first year of law school took up some time (as did my Mahjongg group and book club). Several people have asked me what I've learned thus far, and I can sum it up like this: the law is a clusterf*ck. For a case in point, I offer you the following scenario.

It's a Monday, and you're hung over. You think about going to work... but it's gonna be a slow day in the office, there's a House marathon on cable, and you could really use a haircut. So you call your boss and tell him that you've got the flu, and you tell him you'll be in tomorrow if you're feeling better.

Congratulations, you've just committed wire fraud.


That's right; your actions constitute a federal offense. You are now liable for large fines and a long, long prison term in a Federal "pound-me-in-the-ass" prison. Tell Roger Clemens we said 'hi.'

Under 18 U.S.C. 1343, wire fraud is defined as the use of a phone (or the internet, fax machine, or pretty much any form of communication invented after the Pony Express) to create a scheme to defraud someone of 'stuff'. Section 1346 clarifies that part of 'stuff' includes the "intangible right of honest services." Ipso facto, presto changeo: a federal crime that is defined as being dishonest to someone to whom you shouldn't be dishonest.

It used to be that Honest Services fraud (which can be of the mail or wire variety) was only used to nail elected officials who sold out their constituents. Think Rod Blagojevich. But in the last decade, things have really picked up for honest services fraud in the private sector. You may remember a little company called "Enron" that had some troubles back in the day. Jeff Skilling, former CEO, is in jail for Honest Services fraud. So are at least a half-dozen of other corporate execs, and hundreds of other private-sector individuals.

The problem is that there is no definition of "honest services" in the statute, nor is it clear to whom the duty is owed. In theory, anyone who lies to his employer has committed fraud, even if (a)the employer is not financially harmed, (b) the employer does not find out about it, or (c) the employee does it to help the company. It's gotten so bad that last year, Antonin Scalia issued a blistering dissent to the refusal to grant cert to review an honest services conviction, claiming that the law was out of control.

Last month, the high court agreed to hear the appeal of Conrad Black to review the scope of the law. Conrad Black, though generally an almost Dickensianly dickish character, was thrown in jail for recieving payments (to which he was legally entitled) from one of his companies in a form that allowed him to minimize his Canadian tax liability. This did not violate Canadian tax law, and the payments were upheld as justified. But the fact that he didn't tell the company WHY he wanted the payments to be labeled a certain way sent the guy to jail for three to five years.

For a quick summary, I suggest you read this article on the topic. I'll be working on the issue for a good portion of the summer with a professor here. In the mean time... I suggest you refrain from pissing off your boss.

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Souter's Replacement

I know this isn't new news, but I have been interested in the discussion over who people think should replace Justice Souter. I have heard a variety of responses, from "who cares" from the far right, to some on the left suggesting a "liberal Scalia." I have always been somewhat puzzled by the reaction that Scalia gets. In many ways, he seems to be a right-wing version of Ted Kennedy, a kind of righty boogeyman. Most of the criticism he gets seems to be from people that haven't bothered to read any of his opinions or follow his voting trends (this does not apply to the well-informed readers of ATK).

I have read many suggestions and the following people seem to be on Obama's list: Sonia Sotomayor, Merrick Garland, Cass Sunstein, Eric Holder, Elana Klegan, and Diane Wood. Some of these names I know, but others are people I have no idea as to ideology and opinion. This article on How Souter's Replacement Could Change the Court, from Volokh, is one of the more thoughtful I have read. At least more thoughtful than some of the tirades coming out. I tend to agree with the author. As much as I enjoy reading Scalia's opinions and find him to be thoughful and logical (even when I disagree with him), it isn't helpful if you are unable to faishion any kind of working solutions. I am certainly not suggesting that people of principle should just go along with everyone else, but if you are unable to convince others of your reasoning on a consistent basis, then maybe you are being too contrary.

I prefer a somewhat balanced court that tends to take a pragmatic view of what they are doing. As much as I tend to be a textualist and conservative, there are times when the Court has stepped out of this mold and done something that was good for the country. I also don't think it is a good thing when the court strays too far to the left or right. In the end, the discussion between the left and right is probably good for crafting solutions that are beneficial. Personally, I'd like to see Obama appoint a left-leaning moderate.

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Supreme Court Affirms Right to Bear Arm

The Supreme Court released their decision in the matter of the District of Columbia et al . v. Heller. This case was a challenge as to the constitutionality of several gun laws in the District of Columbia. Those being a ban on possessing a handgun and a requirement that all other guns be stored so that they are non-functional, therefore making them useless for self-defense purposes. I am in the process of a through reading of the case (another long one), but I wanted to give some initial impressions.

There isn't a whole lot of jurisprudence in regards to the 2nd Amendment. Most Con Law classes don't cover it at all and only the 3rd Amendment (quartering soldiers in your home) probably has less case law. Throughout most of our history, this was never an issue. Prior to 1934 there were very few gun laws. A child could order a belt-fed machine gun through the mail. Since that time, there has been a great deal of legislation regulating use, possession, and purchasing of firearms. For the most part, these laws have been upheld, despite numerous challenges. I was very surprised when the Supreme Court decided to hear this case.

What does it say and what does it mean?

1. They affirmed an individual right to keep and bear arms. This has been the majority opinion of most legal scholars and hopefully puts to rest the notion that this right is a collective one that belongs to the states or to people that are members of an orgainized militia.

2. They nullified the two provisions of DC law that were previously mentioned.

They were less clear in some other areas.

1. They rejected the rational basis standard of scrutiny and hinted at a higher level, though didn't say what kind of test it would require.

2. They didn't say if this applied to the states. Under the doctrine of selective incorporation, the second amendment, along with several other provisions from the BOR, has not been held to be binding on the States. Several commentations have suggested that the Court hinted that the 2nd does apply to the States, but I will have to see if I can find that.

3. They didn't say how this would apply to other federal laws.


For the most part, I am pleased with this decision. It didn't go as far as I would have wanted and still left the door open for plenty of other laws, such as licensing and bans on carry, but it is a step in the right direction. I understand that this is an emotional issue for many and I have never hid where my bias stands. I am interested to see how the candidates react. McCain has always been pretty luke warm towards gun rights and has backed many gun laws in the past. Obama has supported gun control, but hasn't made it an issue in this election. I sincerely hope he doesn't start.

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The Terrorists Have Won

Back in law school I had a professor that had copied the cover page from an abridged copy of the US Constitution. He had put an asterisk next to the title and underneath it said, "Now with 30% less freedom." The last two administrations have seen a gradual erosion of Constitutional rights. Occasionally the Supreme Court will step up to the plate and nullify a law or policy that is contrary to the Constitution. This past week they did so when they rendered their decision on Boumediene vs. Bush.

It wasn't long before pundits, bloggers, and critics to blast this brand of "judicial activism." Almost candidate Fred Thompson called the decision a "Supreme Error." Newt Gingrich suggested this decision will "cost us a city." If you visit any blogs or message bourds you will hear suggestions that the terrorists have won or that the detainees will be let go, given welfare, health care, and a free college education in the US. Absolute rubbish, in my opinion, but the internet wouldn't be the internet without hyperbole.

The published decision is here if you want to read it. It is long, even for the Supreme Court. The decision is 70 pages or so and the dissenting opinions are another 56 pages. I am still working my way through it and I will readily admit that Habeas cases were never easy for me, depite taking a class on federal jurisdiction. If you read the holding you will not find anything about the terrorists winning or even being let go and given a free college education. Essentially, they said the following:

1. The detainees named in the case are being held on US territory.
2. Habeas Corpus, as stated in the Constitution, may only be suspended in "Cases of Rebellion or Invasion the public Safety may require it."
3. This was not a situation where Habeas may be suspended.
4. The procedures and safeguards put in place by Congress and the President are not adequate substitutes.
5. Petitioners may file habeas claims in a US Court to challenge the claim that they are unlawful combatants.

All of the people named in this case are citizens of countries that are not at war with the United States. I think it is also fair to say that some are probably not terrorists. Even the ones that have done something deserve due process. They certainly shouldn't be held for years with no meaningful opportunity to challenge their detainment.

If you get a chance, at least read the holding and form your own opinion before you believe any of the doom and gloom predictions of the critics. Personally, I never liked a notion of a perpetual war on terror where people are held in prisons without any kind of procedural safeguards. I tend to agree with Justice Kennedy when he writes that:


In considering both the procedural and substantive standards used to impose detention to prevent acts of terrorism, the courts must accord proper deference to the political branches. However, security subsists, too, in fidelity to freedom’s first principles, chief among them being freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers.

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