FIRST ONE @ ONE FIRST

Nebraska Stands Down…For Now

Posted in Clairvoyance, Law and Politics by Mike Sacks on August 18, 2010

Just a few days ago, it seemed as though in the next few terms the Court would be facing down an unavoidable phalanx of hot-button issues: gay marriage, health care, affirmative action, illegal immigration, and abortion.  Today, however, the phalanx may have lost a horseman: the inevitable big abortion case became, well, evitable–kind of.

Back in April, the Nebraska legislature passed a new law, LB 594, that required pregnant women seeking abortions to be screened for a litany of risk factors to determine whether the women would suffer from mental or physical problems following an abortion.  In July’s Planned Parenthood v. Heineman, Judge Laurie Smith Camp of the U.S. District Court for the District of Nebraska found the bill to create “substantial, likely insurmountable, obstacles in the path of women seeking abortions in Nebraska,” and issued a temporary restraining order in enjoining the legislation from coming into effect.

Today, the AP reports that the Nebraska Attorney General has chosen not to appeal:

“It is evident from the judge’s ruling (to temporarily block the law from taking effect) that LB594 will ultimately be found unconstitutional,” she said. “Losing this case would require Nebraska taxpayers to foot the bill for Planned Parenthood’s legal fee.”

“We will not squander the state’s resources on a case that has very little probability of winning.”

While the district court’s TRO will now become a permanent injunction, a severability clause in LB 594 allows the rest of the legislation to stand.

Nevertheless, there remains separate bill, LB 1103, which provided for the headline-grabbing ban on abortions after 20 weeks of pregnancy–without regard to the woman’s health–on the theory that fetuses can feel pain at that gestational point.  The provision, says the AP, “is scheduled to go into effect on Oct. 15, but a legal challenge is possible from Bellevue abortion doctor LeRoy Carhart.”

Yes, that’s the same Carhart from the partial-birth abortion cases of 2000 and 2007, in which the Court sided first for Carhart in striking down a Nebraska law, and then, with Justice Alito’s replacement of Justice O’Connor, sided against Carhart in upholding a virtually identical federal law.

If Carhart does bring suit, then the hot-button phalanx lives.  The question then will be how the Roberts Court will dispose of these cases if docketed.  Might we see a return of the 2006-07 Court, which stacked the docket with ideological blockbusters and pushed the issues rightward?  Or will we see a continuation of the Court’s past two terms, in which it preserved its political capital for one major gain while finding compromises on issues too explosive to touch.  Political factors may determine which Roberts Court we shall see: will the Court be supported by a Republican-controlled Congress?  Will these cases come during the 2012 Presidential campaign or after the election?

After much talk, including my own, of this term’s rise of the Roberts Court, we may be in for another incarnation sooner than imagined.

CORRECTION: This post originally stated that the two abortion restrictions discussed were part of the same Nebraska bill.  That was incorrect.  The post has been edited accordingly.  Thanks to my professor and mentor, Ken Jost of CQ Researcher, for calling my error to my attention.

Quick Prognostication

Posted in Clairvoyance, Law and Politics by Mike Sacks on August 13, 2010

Tom Goldstein at SCOTUSblog explains why he believes Acting Solicitor General Neal Katyal will be named the official Solicitor General.  I agree with his analysis, but want to extrapolate a bit more: Katyal will be named SG with the specific purpose of priming him for a Supreme Court seat.

Now here comes my march of the “ifs”:

The said seat will not be open for quite some time.  Justice Ginsburg, likely the next justice to retire, has no plans to do so for at least another five years.  Assuming that Ginsburg remains healthy and that President Obama wins reelection, I also assume that Obama would replace Justice Ginsburg with a woman.

Whether or not Ginsburg proves to be the final retirement under Obama, if Katyal wants to leave the SG’s office before another Court vacancy, then I expect he will be nominated to a federal court of appeal.  Doing so will bolster his position as a future SCOTUS nominee, even if Justice Kagan’s nomination straight from the SG’s office has proven federal judgeships unnecessary for a nominee’s confirmation.

If a fourth vacancy comes up before the 2016 election, then Katyal will be the pick.  By age and political allegiance, Justice Breyer would be the most likely justice to voluntarily leave the bench during the Obama administration, especially if the country’s in a Republican mood leading into 2016.  Doing so would leave room for Katyal, Breyer’s former clerk, to be a reliable successor while also becoming the Court’s first Indian-American justice.

Further, if there is no fourth vacancy under Obama and a Republican becomes president in 2016, Katyal, who is now only 40 years old, will be able to spend eight years building his reputation as a judge and still be young enough for a nomination in 2024.  Then again, by 2024, Clarence Thomas would be the oldest justice at 76–hardly retirement age for justices these days.

So instead, Katyal’s placement as SG with an eye towards SCOTUS relies on the biggest “if” of all: the departure of Justice Scalia or Kennedy a) during a Democratic administration and b) before the retirement of Justice Breyer.  This comes loaded with all sorts of assumptions, the most reasonable being a Democratic presidency beyond 2016–itself a far from a reasonable assumption.  That said, in such an instance, Katyal could be the all-around perfect pick to thwart the full-on thermonuclear confirmation war expected to occur should either Scalia or Kennedy leave their seat–and the Court’s ideological balance–in Democratic hands.

Goldstein’s explanation of Katyal’s credibility from both the left and the right could serve just as well for a SCOTUS nomination as it does for an SG appointment:

Katyal is the Acting Solicitor General, having served as the Principal Deputy Solicitor General throughout the Administration.  In the Clinton Administration, he served as National Security Advisor in the Department of Justice.  He then was a very well known academic (focusing on national security questions) who also practiced before the Court.  He was among a handful of lawyers who formed an advisory body to Barack Obama during the campaign.  Katyal’s work before the Court was very highly regarded, including his victory in Hamdan v. Rumsfeld.  (Another disclosure, I was co-counsel inHamdan, but my role was relatively minor.)  Katyal’s reputation has been sterling, both within the Office of Solicitor General and in his interactions with the broader Department of Justice and the government generally. [...]

Katyal has broad support in the Republican legal establishment that should smooth the confirmation process.  My intuition when I decided to write this piece was actually the opposite:  that Katyal’s representation of Hamdan would present an obstacle to his nomination and confirmation.  (Verrilli has somewhat similar issues, given that (like me) in private practice he generally appeared on the left-leaning side of cases.) But it turns out that conservatives have recognized that Katyal’s role in Hamdan was entirely appropriate and that he has an exceptionally strong record on national security questions.  He not only worked on national security issues for the government prior to Hamdan, but as an academic supported the use of national security courts (with Jack Goldsmith), and he subsequently represented the Obama Administration in successfully arguing against both the challenge to rendition in the Arar case and the claim that habeas corpus rights should be extended to detainees held at Bagram Air Force Base (drawing criticism from the left and the New York Times editorial page).  For conservatives rejecting criticism of Katyal’s work in Hamdan, see this piece by the Wall Street Journal editorial page; this piece by Reagan Solicitor General Charles Fried; and these articles quoting Ted Olsonand Richard Epstein.

Barring an actual conservative nominee or an indefinite hold on any nominee until the Republicans take back the White House, Katyal could be the best, most palatable nominee the Republicans could hope for from a Democratic administration.

Of course, a lot happens between election years and Supreme Court vacancies.  Nominations themselves are entirely dependent upon political timing.  But I would be surprised if the White House hasn’t discussed the very scenarios I outline above when talking about Katyal.

Retired Justices as Recusal Subs, Redux

Posted in Law and Politics by Mike Sacks on August 9, 2010

Bob Barnes of the Washington Post revisits the possibility of rotating retired justices onto the Court when an active one recuses him- or herself:

Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) is pondering whether a change is needed. He’s considering legislation that would allow a retired member of the Supreme Court to replace a justice who has recused himself — or herself — in a particular case.

This would avoid the court potentially splitting 4 to 4 on a case and, Leahy hopes, encourage justices to recuse themselves more often when there is an appearance of partiality.

This idea was first publicized by the National Law Journal soon after Justice Stevens, upon announcing his retirement, suggested the idea to Leahy.  I wrote then about the possible political motivations and jurisprudential consequences:

This seems to me a politically loaded suggestion.  There has already been much talk about Kagan’s potentially high recusal rate over the next few terms as the Court continues to hear cases that her office had briefed in the lower courts.  On divisive issues, Kagan’s absence would lead to 5-3 victories for conservatives or ideological deadlocks at 4-4.

I cannot imagine that the GOP members of the Judiciary Committee will agree to this plan.  If Kagan does not recuse herself on a case in which a conservative may be obligated to do so, two of the substitutes–Souter and Stevens–would be a fifth vote on the left.  It is not inconceivable that these two retired ringers could cut away at the Roberts Court’s business-friendly precedents, as the Court sometimes goes shorthanded on cases concerning corporations in which justices may own stock.

O’Connor, too, exited the Court to the left of Anthony Kennedy on campaign financechurch-and-stateabortion, andaffirmative action cases – all issues that have been cut back since Alito succeeded her.  However, recusals on these cases are less likely.  That is, unless some advocacy group somehow finds a not-too-distant relative of Justice Scalia who is an abortion doctor in Nebraska that is willing to be a named plaintiff in a federal case.

Barnes’s article today echoes my sentiments:

at some point, theory steps aside and reality sets in. “It’s an interesting idea,” said James Sample, a Hofstra law professor who has specialized in studying judicial recusals. “The challenge is that it’s so difficult to divorce discussion of the proposal from the individual justices who might end up replacing the recused justices.”

In other words, the bench currently consists of Stevens, O’Connor and retired justice David H. Souter, all of whom are to the left of the court’s dominant conservatives.

It is as unlikely to think Republicans would think it is a good idea to put them back in the lineup, Sample said, as it is to think Leahy would be as keen on the idea if the available replacements were, say, former chief justices William H. Rehnquist or Warren E. Burger.

Marriage, Not Gay Marriage – says Judge Walker

Posted in Case Reports, Law and Politics by Mike Sacks on August 4, 2010

I’m speed-reading through the Prop 8 case decision that just invalidated the ballot measure as violating the 14th Amendment’s Due Process and Equal Protection Clauses.  Judge Walker framed his decision not as creating a new right to gay marriage, but rather a vindication of the institution of marriage itself:

Plaintiffs do not seek recognition of a new right. To characterize plaintiffs’ objective as “the right to same-sex marriage” would suggest that plaintiffs seek something different from what opposite-sex couples across the state enjoy —— namely, marriage. Rather, plaintiffs ask California to recognize their relationships for what they are: marriages. (p. 114)

And because the Supreme Court has long held that marriage is a fundamental right, and holds that California’s domestic partnership alternative for same-sex couples is no substitute for that fundamental right.  Walker then applies strict scrutiny to the plaintiffs’ claims and concludes that Prop 8 violates the Due Process Clause of the 14th Amendment, largely because he held in the findings of facts that the defense’s witnesses were “unreliable and entitled to essentially no weight”:

As explained in detail in the equal protection analysis, Proposition 8 cannot withstand rational basis review. Still less can Proposition 8 survive the strict scrutiny required by plaintiffs’ due process claim. The minimal evidentiary presentation made by proponents does not meet the heavy burden of production necessary to show that Proposition 8 is narrowly tailored to a compelling government interest. Proposition 8 cannot, therefore, withstand strict scrutiny. Moreover, proponents do not assert that the availability of domestic partnerships satisfies plaintiffs’ fundamental right to marry; proponents stipulated that “[t]here is a significant symbolic disparity between domestic partnership and marriage.”  Accordingly, Proposition 8 violates the Due Process Clause of the Fourteenth Amendment.

On the Equal Protection front, Walker did not assign a heightened level of scrutiny to gays and lesbians, abiding by the Supreme Court’s refusal to cast equal suspicion on classifications based on sexual orientation as those based on gender or race.  But sexual orientation’s rational basis review, which started as a dodge by Justice Kennedy back in Romer v. Evans and continued by Justice O’Connor in her Lawrence v. Texas concurrence, now seems to be as protective as intermediate and strict scrutiny.  Rational basis review is supposed to be the most forgiving of acts of discrimination–if one gives even a hypothetical justification in defense of a discriminatory law or practice, that law or practice would always be deemed constitutional.  Higher levels of scrutiny were left for “officially” illegitimate identity-based classifications.

But now, the Court, in avoiding the anointment of a new suspect classification for fear of bringing the Clinton/Bush era culture wars into the courtroom, has made its imprimatur irrelevant.  If you enact a law or institute a practice that tells a distinct and traditionally maligned group of Americans that they are unequal citizens, then you are irrational.  Hypothetical justifications are now inadmissible opinions unworthy of deference.  And when this case reaches the Supreme Court, the justices’ reliance on rational basis review will no longer be a peevish dodge or refusal to stratify suffering; it will be an honest reckoning of an America that no longer tolerates intolerance.

Walker provides an example of this leveling of rational basis and heightened scrutiny by collapsing sex and sexual orientation discrimination into each other:

Having considered the evidence, the relationship between sex and sexual orientation and the fact that Proposition 8 eliminates a right only a gay man or a lesbian would exercise, the court determines that plaintiffs’ equal protection claim is based on sexual orientation, but this claim is equivalent to a claim of discrimination based on sex.

In doing so, he also pulls out a nugget from Justice Ginsburg’s Christian Legal Society opinion that some seized on several weeks ago as a gay marriage “time bomb” in dicta:

Indeed, homosexual conduct and attraction are constitutionally protected and integral parts of what makes someone gay or lesbian. Lawrence, 539 US at 579; FF 42- 43; see also Christian Legal Society v Martinez, 561 US __, 130 SCt 2971, No 08-1371 Slip Op at 23 (“Our decisions have declined to distinguish between status and conduct in [the context of sexual orientation].”) (June 28, 2010) (citing Lawrence, 539 US at 583 (O’Connor, J, concurring)). [my emphasis]

Just for the sake of it, though, Walker does explicitly intimate his belief that even though he is applying rational basis, strict scrutiny is appropriate:

The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation. FF 47. Here, however, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review.

This note, however, is more evidence that levels of scrutiny collapse when one recognizes animus-driven actions for what they are.  More searching review may come in time for less overtly hostile acts and practices, but hopefully by that time, there will be no more suspect classes and only suspect actions.

A jurisprudence of rights as opposed to identities appeals to Justice Kennedy, whether or not American society has caught up to his ideal.  Kennedy might not have liked to watch this case at first, but he will most certainly enjoy being in the center of the action once Perry v. Schwarzenegger gets to the Court.  As opposed to his more conservative brethren, he sees rights as robust vessels rather than narrow privileges.  For this reason, Walker’s Due Process analysis broadly reading the right of marriage will be Kennedy’s reasoning of choice, while we can count on Scalia to see such a robust reading as leading, at the very least, to unions between all consenting adults no matter how many or how closely related.

But for unanimity’s sake, Kennedy, or maybe a justice or four in the liberal bloc, would be well-advised to latch onto Walker’s Equal Protection analysis as well.  Under this analysis, Scalia has already accepted gay marriage as an legal inevitability, per his Lawrence concurrence:

This reasoning leaves on pretty shaky grounds state laws limiting marriage to opposite-sex couples. Justice O’Connor seeks to preserve them by the conclusory statement that “preserving the traditional institution of marriage” is a legitimate state interest. Ante, at 7. But “preserving the traditional institution of marriage” is just a kinder way of describing the State’s moral disapproval of same-sex couples. Texas’s interest in §21.06 could be recast in similarly euphemistic terms: “preserving the traditional sexual mores of our society.” In the jurisprudence Justice O’Connor has seemingly created, judges can validate laws by characterizing them as “preserving the traditions of society” (good); or invalidate them by characterizing them as “expressing moral disapproval” (bad).

Of couse, gaining Scalia’s vote–even in an exasperated concurrence–is wishful thinking.  But at least the Court’s putative majority in Perry v. Schwarzenegger, — U.S. — (2013) will take pleasure in quoting him, as Walker did in his Finding of Fact 21(c) on page 61 of his 136-page opinion:

Lawrence v Texas, 539 US 558, 604-05 (2003) (Scalia, J, dissenting) (“If moral disapprobation of homosexual conduct is ‘no legitimate state interest’ for purposes of proscribing that conduct * * * what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising ‘the liberty protected by the Constitution’? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.”)

Nevertheless, there always does remain the chance that this putative majority may turn to mush in the face of a federal right to same-sex marriage, whether or not Walker’s framing survives the Ninth Circuit’s go-round.  And as I wrote after the Massachusetts DOMA cases:

The question now, however, is whether Justice Kennedy, the author of both Romer and Lawrence and the putative fifth vote in a gay marriage case, is willing to extend his sexual orientation discrimination jurisprudence the same way he has expanded his death penalty jurisprudence.  In other words, is recognizing a federal constitutional right for same-sex marriage more akin to sheltering juveniles from life without parole for non-homicide crimes, or is it more like deeming the death penalty at all times unconstitutional under the Eighth Amendment?  If the former, the Perry plaintiffs can take heart.  If the latter, Perry may fail to gain Kennedy’s approval, and Gill and Mass v. HHS will become the preferred precedents in the fight for marriage equality.

We must remember that even though Kennedy likes his rights robust, he has also become the limiting agent to the abortion right he helped preserve in Casey.  But there is a difference between the gay rights Kennedy has helped protect in Romer and Lawrence and the abortion rights he has since restricted since Casey: gay marriage, unlike abortion, has no dauntingly actual life-or-death element.

Yet as a matter of political consequence, a critical mass of states has not yet come to pass on gay marriage.  With only a handful of states and the District of Columbia recognizing same sex marriage, Perry may be more Roe than Loving, and I imagine that every member of the Court will have that in mind when considering the case.

What is certain is that same-sex marriage is gestating in the states, however few have so far endorsed it.  The question, then, will be whether Kennedy sees Walker’s opinion as a new birth of freedom for a class long robbed of its dignity, or as a grisly killing of viable progress throughout the states’ slow and steady political processes.

A Speculation Too Far

Posted in Law and Politics by Mike Sacks on July 26, 2010

Jeff Greenfield at CBS News writes of the “possibility” that Obama could replace a conservative justice before 2012:

Now imagine it’s 2011, and the Senate has become more Republican than it is now; And imagine that Clarence Thomas or Antonin Scalia — or Roberts or Alito or even Anthony Kennedy (the “swing justice”) — has to leave the bench. [...]

If there is a liberal nominee posed to replace a conservative, we are sure to hear Republicans arguing for the merits of a filibuster, while Democrats attack it as an invalid tactic. We will hear Republicans arguing that ideology is indeed a legitimate ground for voting against a nominee qualified by experience; while Democrats, who once asserted precisely that point, will argue that qualifications and competence are what matters. [...]

The potential for gridlock and conflict becomes even greater if we imagine a Republican takeover of the Senate in November; meaning that the Judiciary Committee, and the Senate calendar, would come under the control of Republicans, In that case, try to imagine what kind of nominee Mr. Obama could get confirmed.

I’ve done some speculating on this blog, but Greenfield’s rests in the no man’s land between the patently absurd and entirely plausible.  That is, he’s peddling as possible an abject impossibility for the sake of clever commentary.  Two problems: his observations are obvious, not illuminating; and his starting hypothetical is a non-starter in reality.  Absent an unforeseen death, no member of the Court’s conservative bloc–or Justice Kennedy–is going anywhere in the next two (or even six) years.

Now, we can certainly talk about Obama’s lower court nominations in the next two years should the GOP gain majorities or at least more significant minorities in Congress this November.  And we can talk about whether such a potential change in Congress will impact the list of potential successors to Justice Ginsburg should she retire during Obama’s first term.  But please, no more futile talk of who will replace Scalia in the next two years.

Liptak on Roberts Court PoliSci

Posted in Law and Politics by Mike Sacks on July 24, 2010

Adam Liptak of the New York Times has just written a long piece on the Roberts Court’s ideological leanings according to leading political scientists.  It’s well worth a read, especially for those trained in the law who are used to assessing the Court qualitatively – Liptak engages with the quantitative research that codes and crunches opinions that most of us just read.

Even more fun, the Times has included an interactive feature for us to test how we measure up to the Roberts Court on hot button cases.

If you really enjoy Liptak’s subject matter, I suggest you also give a look to some of the political science books under my “Foundational Texts” in the sidebar to the right.  In addition, give a click to the Supreme Court Database, which you can also find linked in my “Resources” sidebar section.

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Mauro on Stewart

Posted in Law and Politics by Mike Sacks on July 19, 2010

Tony Mauro at the National Law Journal has another piece up from his digging through the Potter Stewart papers, this time on the Justice’s friendships with President George H.W. Bush and Professor Larry Tribe, and their thoughts about what could have been.

Stewart died in 1986, so he never saw his friend George make it to the White House in 1989 – but Mauro finds that he did follow his friend’s 1980 Presidential run and VP nomination quite closely:

Stewart clearly had a keen interest in Bush’s electoral fortunes, collecting news clippings about Bush testing the waters for a 1980 run for the presidency, which turned into a campaign for vice president with Ronald Reagan at the top of the ticket. Stewart corresponded with Christopher Phillips, apparently a strategist who was urging Bush to stress his moderate views and not give in to pressure from the right that was fueling Reagan’s success. “My great fear is that even if the views stated in your memorandum are fully understood and completely accepted, the house may be irreparably late,” Stewart wrote. Stewart even shared his views with Powell, who wrote Stewart, “These are views you and I have shared. It may indeed be too late now.”

Indeed, for the Court, it was too late.  Under Reagan, Stewart and Powell’s moderate conservatism–political and jurisprudential–began its decline towards today’s near-extinction.

And from Stewart’s “Tribe” file:

In May 1969, after Nixon appointed Warren Burger as chief justice, Tribe wrote a letter to Stewart mourning the demise of a shared hope: that Stewart would be elevated to the position instead. “I had so hoped things would turn out differently,” Tribe wrote. “For you — and for the country — I am sorry.” Stewart’s reply note did not deny the ambition.

This note from Tribe seems at odds with The Brethren‘s prologue (see pp. 10-13), in which Woodward and Armstrong write that Stewart declined President Nixon’s overtures to elevate Stewart to Chief Justice.  Perhaps Stewart, now known as a significant source for The Brethren, fed Woodward and Armstrong this story for pride’s sake.  Perhaps Tribe did not know about this meeting.  Or perhaps Tribe was lamenting the underlying reasons why Stewart felt compelled to decline the President’s offer – “why”s that may have been lost forever in the fires Tribe told me about at the Kagan hearings and reiterated to Mauro:

Laurence Tribe remembers watching Potter Stewart, the U.S. Supreme Court justice for whom he clerked in 1967, feed his office fireplace around Christmas time.

Stewart was burning some of his Court papers, recalls Tribe, the Harvard law professor and now senior counselor at the Justice Department. “He told me that it was an annual affair.”

What papers did Stewart destroy that year? “I promised him I’d remain forever silent, and it’s a promise I feel bound to keep,” Tribe said.

Read the whole piece over at Law.com.

Jack Kevorkian: Born-Again Ninth Amendment Activist

Posted in Law and Politics by Mike Sacks on July 15, 2010

When Jack Kevorkian went to prison for assisting suicides, he didn’t find God.  He found the Ninth Amendment.

This documentary is in the background while I’m working on some other projects, and my ears pricked up when he mentioned the constitutional revelation that prompted his quixotic congressional run in 2008 with the late Justice Arthur Goldberg as his spiritual guide.

The Court, however, is not sympathetic.  It dispatched Kevorkian’s earthly calling, assisted suicide, in 1997; denied certiorari in 2004 to Kevorkian’s own appeal of his conviction; and has barely uttered a word about the Ninth Amendment since Goldberg’s 1965 Griswold concurrence, spare for a little Scalian brush-off in 2000.

(h/t Josh Blackman for reminder of Scalia’s take on the Ninth.  For those more interested in the Amendment, see Josh’s December post on current Ninth Amendment scholarship divides.)

UPDATE: Just peeked at Kevorkian’s denied SCOTUS petition for certiorari to see his Ninth Amendment argument.  It’s pretty paltry.  He seems to have thought much more about it since submitting the petition, or, more likely, his lawyers thought making the case to the Court was a waste of time.  This is the entire section:

II. THIS PETITION SHOULD BE GRANTED BECAUSE DR. KEVORKIAN’S RIGHTS UNDER THE NINTH AND FOURTEENTH AMENDMENTS WERE VIOLATED.
As a threshold matter, the District Court erroneously determined that Dr. Kevorkian’s claim of a violation of the Ninth Amendment was procedurally defaulted on the basis that such issue was purportedly not properly placed before the Michigan Court of Appeals. In fact, this issue was properly put before the Michigan Court of Appeals, but the Michigan Court of Appeals nonetheless deliberately and wrongfully ignored the issue. Specifically, Dr. Kevorkian clearly stated that his Constitutional claim is based uponboth the Ninth and Fourteenth Amendments jointly. In fact, the Michigan Court of Appeals did render an opinion on the merits regarding Dr. Kevorkian’s position under the Fourteenth Amendment which included intertwined aspects of the Ninth Amendment. Because Dr. Kevorkian’s claim for relief in his Habeas Petition is premised upon the intertwined aspects of both the Ninth and Fourteenth Amendments, and the Michigan Court of Appeals did in fact address the merits of Dr. Kevorkian’s position, there can be no procedural default because the Michigan Court of Appeals did rule upon such issue.

Although the District Court determined that no violation of the Fourteenth Amendment had occurred on the basis that there is no constitutional right to commit euthanasia, Dr. Kevorkian never asserted a right to commit euthanasia as a basis for his appeal.  Instead, Dr. Kevorkian expressly asserted only a right of the patient to be free from unbearable and irremediable pain and suffering, which right can be asserted by a treating physician when the treating physician is accused of a crime as a result of his actions in aiding the patient in obtaining medical treatment for unbearable and irremediable pain and suffering, which treatment is constitutionally permitted. Washington v. Glucksburg, 521 U.S. 702, 737 (O’Connor, J., concurring), 791-792 (Breyer, J., concurring) (1997). Indeed, the clear precedent of this Court approves of “aggressive palliative care,” such as the care provided by Dr. Kevorkian. Id. at 745,750-751 (Stevens, J., concurring).

Justice Stewart’s Papers are Now Open

Posted in Law and Politics by Mike Sacks on July 13, 2010

Tony Mauro of the National Law Journal is reporting on the opening of Potter Stewart’s papers at Yale:

Stewart died in 1985 at age 70, but he stipulated that his papers would not be made public until the retirement of all justices with whom he served. Justice John Paul Stevens was the last justice in that category, so his departure was the trigger for the release of Stewart’s papers, at long last.

[...] From an initial scan of his case and correspondence files, it does not appear, however, that scholars will learn much about how his brethren won over his vote. The case files generally contain just successive drafts of opinions, with little else.

Mauro’s initial impression of a lack of juicy behind-the-scenes details is corroborated by what I learned in a brief exchange with Professor Larry Tribe at the Kagan hearings.  Tribe was a Stewart clerk in the 1967-68 term and told me that Stewart burned much of his more sensitive papers.  Learning this dampened my enthusiasm to make a trip to New Haven to go digging through Stewart’s records, but perhaps I may still head up there at the end of the summer.

Readers of F1@1F may know that I’m a big fan of Stewart’s “scrupulously non-ideological” jurisprudence, as Mauro describes it. Indeed, if I were ever to write a biography of a Supreme Court justice during his tenure on the bench, I would look to Stewart.  He is of a dead breed of judicial conservatism that will be due for a resurrection in the next decade or two.

As the public begins to recognize that originalism is not at all a safeguard against–but rather a thin veil masking–results-oriented, unprincipled judging, we will see a return of confidence in judges who need no theory of everything to be good, careful, honest judges.  At least so I hope.  Today’s liberal bloc is often derided for being too pragmatic and moderate, that the left needs ideological liberals in the molds of Douglas, Black, Warren, Brennan, and Marshall.  But I think the answer is in more Stewarts, Harlans, Whites, and O’Connors on the right.  A perfect court, in my mind, would have its Brennan/Marshall’s and Scalia/Thomas’s on the wings, with a broad and heterodox middle taking each case as it came.  That would be a diverse bench.  The question remains, however, whether in the age of movement conservatism there remain any pragmatic right-leaning judges or lawyers for future Republican presidents to appoint.

Perhaps some of Stewart’s papers that survived the fireplace may hold a blueprint for a resurgent pragmatic conservatism on the Court.

DOMA Unconstitutional?

Posted in Law and Politics by Mike Sacks on July 8, 2010

The gay marriage battle has taken a significant step towards the Supreme Court today.  No, the verdict hasn’t yet been announced in California’s Proposition 8 case.  Rather, a federal district court in Massachusetts, in a pair of cases, has declared the Defense of Marriage Act, or DOMA, unconstitutional as applied to states and individuals.

Via Above the Law:

A federal judge in Boston — Judge Joseph L. Tauro (D. Mass.), appointed to the bench by President Nixon back in 1972 — just issued a ruling striking down Section 3 of the Defense of Marriage Act (DOMA). As you may recall, DOMA is the 1996 law that effectively bans recognition of same-sex marriages for purposes of federal law.

One case, Massachusetts v. U.S. Health and Human Services, struck down DOMA as a violation of Massachusetts’ Tenth Amendment rights.  The other case, Gill v. Office of  Personnel Management, declared DOMA to violate the equal protection component of the Fifth Amendment as applied to seven same-sex couples and three surviving same-sex spouses who were married in Massachusetts.

As this case seems destined for One First Street, somewhere Elena Kagan is thankful she didn’t commit to Sen. Chuck Grassley’s questioning her over the precedential value of Baker v. Nelson, the 1971 Minnesota Supreme Court case that held that a state law restricting marriage to the union of a man and a woman did not violate the Constitution–a holding that the United States Supreme Court dismissed on mandatory appeal in 1972 “for want of a substantial federal question.”

And somewhere in Iowa, Grassley is CTRL-F’ing the two opinions for any mention of Baker v. Nelson, only to find no mention of it by Judge Tauro.

In fact, by prefacing his questions to Kagan with the assertion, “Marriage is a state issue,” Grassley framed Baker v. Nelson in a way favorable to the prevailing plaintiffs in today’s rulings.  After all, Judge Tauro’s opinions struck to the heart of a federal law that cut against a state’s decision to recognize same-sex marriages.

But Grassley had not the Massachusetts cases in mind, but rather the Prop 8 case, Schwarzenegger v. Perry, in which a state constitutional amendment limiting marriage to a man and a woman violates the federal constitution.  On this point, Perry is the opposite of the Massachusetts cases: whereas Mass v. HHS asserted a state’s traditional supremacy in marriage matters over federal statutory meddling, the plaintiffs in Perry seek federal supremacy over a popularly-passed state constitutional provision.

Where the two come together, however, is in Gill.  Just as the Perry plaintiffs seek cover of the federal constitution’s guarantee of equal protection, so did the Gill plaintiffs prevail on that very claim.  The difference, of course, is that Gill employs the federal constitution to strike down a federal law; the Perry plaintiffs seek to use the same provision to strike down a state law.

But that may be a distinction without a difference when it comes to an equal protection claim rooted in sexual orientation discrimination–a concept that had no popular support or force of law when the Court passed on Baker v. Nelson in 1972.  But Romer v. Evans and Lawrence v. Texas set the Court on the path towards looking at state marriage laws that make classifications between sexual orientations with similar suspicion to those that did so on the basis of race.  And the Court surely meddled in the state’s traditional power to regulate marriage when it did find enough of a substantial federal question in the anti-miscegenation statutes in struck down in 1967′s Loving v. Virginia.

The question now, however, is whether Justice Kennedy, the author of both Romer and Lawrence and the putative fifth vote in a gay marriage case, is willing to extend his sexual orientation discrimination jurisprudence the same way he has expanded his death penalty jurisprudence.  In other words, is recognizing a federal constitutional right for same-sex marriage more akin to sheltering juveniles from life without parole for non-homicide crimes, or is it more like deeming the death penalty at all times unconstitutional under the Eighth Amendment?  If the former, the Perry plaintiffs can take heart.  If the latter, Perry may fail to gain Kennedy’s approval, and Gill and Mass v. HHS will become the preferred precedents in the fight for marriage equality.

Either way, though, Grassley’s implication that marriage, unlike criminal law, remains free from federal constitutional scrutiny rests on shaky historical foundations.  But then, if we take that notion seriously, what does that say about Tauro’s opinions today?

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