CNN will be running back-to-back episodes of its Death Row Stories series starting tonight. As something of a preview that may be of particular interest to MOJ readers, here is the article on Sr. Helen Prejean.
Friday, August 29, 2014
Sr. Helen Prejean: Botched executions unmask a botched system
Wednesday, August 27, 2014
"Based on hate, isn't it?" (Posner, J., on the husband-wife requirement for civil marriage)
As an advocate and practitioner of judicial googling, I'm hoping that Judge Posner will eventually come across Ryan Anderson's "7 Reasons Why the Current Marriage Debate Is Nothing Like the Debate on Interracial Marriage." If he had been able to read it before yesterday's oral arguments, perhaps Bloomberg's headline would be something other than "Appeal Judge Sees Tradition of Racism in Gay-Marriage Ban."
Sunday, August 3, 2014
His saltem accumulem donis, et fungar inani munere. (Story, J., quoting Virgil re: Marshall)
The 1837 Term of the Supreme Court was a hard one for Justice Joseph Story. His mentor and friend, the great Chief Justice, had died, and the Taney Court was tacking away from John Marshall's course. Story's dissents in some of the cases that marked the clearest departures from Marshall's jurisprudence are personal and powerful. Perhaps the most poignant is his dissent in Briscoe v. Bank of Kentucky, 36 U.S. 257 (1837). The concluding paragraph:
I am conscious, that I have occupied a great deal of time in the discussion of this grave question; a question, in my humble judgment, second to none which was ever presented to this court, in its intrinsic importance. I have done so, because I am of opinion (as I have already intimated), that upon constitutional questions, the public have a right to know the opinion of every judge who dissents from the opinion of the court, and the reasons of his dissent. I have another and strong motive-my profound reverence and affection for the dead. Mr. Chief Justice Marshall is not here to speak for himself; and knowing full well the grounds of his opinion, in which I concurred, that this act is unconstitutional; I have felt an earnest desire to vindicate his memory from the imputation of rashness, or want of deep reflection. Had he been living, he would have spoken in the joint names of both of us. I am sensible, that I have not done that justice to his opinion, which his own great mind and exalted talents would have done. But with all the imperfections of my own efforts, I hope that I have shown, that there were solid grounds on which to rest his exposition of the constitution. His saltem accumulem donis, et fungar inani munere.
The concluding lines are from Virgil's Aeneid. They express an intent to honor the revered deceased with one's perhaps futile labors. Some translations:
- "let me at least bestow upon him those last offerings, and discharge a vain and unavailing duty" (Routledge Guide to Latin Quotations)
- "these offerings at least let me heap upon my descendant's shade, and discharge this unavailing duty" (Rivington et al. 1821)
- "this unavailing gift at least I may bestow" (Dryden)
"The lavish homes of American archbishops"
CNN has the story.
Roger Sherman on religious objection both to bearing arms and to "getting substitutes or paying an equivalent"
In reading over accounts of various debates in the First Federal Congress, I came across an interesting description by Congressman Roger Sherman of the nature of the religious objection that some had to bearing arms. The context is debate over proposed wording of a part of the Second Amendment that did not make it into the final version. The proposed amendment stated: "A well regulated militia, composed of the body of the people, being the best security of a free state; the right of the people to keep and bear arms shall not be infringed, but no person, religiously scrupulous, shall be compelled to bear arms."
Sherman opposed inserting the non-compulsion language into the Constitution, in part because the states would be able to govern the militia and would not so arbitrarily. The point here is not to describe the debates over this language in full but simply to take note of the nature of the religious objection as described by Sherman. That objection, in Sherman's view, extended not only to being personally compelled to bear arms but also to personally obtain a substitute or pay an equivalent. Sherman stated: "It is well-known that those who are religiously scrupulous of bearing arms, are equally scrupulous of getting substitutes or paying an equivalent; many of them would rather die than do either one or the other ...." (Congressional Register, August 17, 1789)
The situations are not entirely parallel, but we can see in this description of religious objections some similarities to the current debates over the HHS contraceptives mandate. Many of those who object to including the coverage explicitly in their plan also object to "getting substitutes or paying an equivalent." Some view this religious moral judgment as wrong or misguided, while others think it inapplicable to the "accommodation" (which the Administration has suggested is going to change yet again). As Sherman's description shows, however, this kind of objection to getting a substitute to do what one cannot do directly is hardly unprecedented.
Thursday, July 31, 2014
Justice Ginsburg on the five male Justices' "blind spot" in Hobby Lobby, and the influence of daughters on their fathers
Justice Ginsburg's recent interview with Katie Couric is getting a lot of attention. One Yahoo! write-up focuses entirely on Justice Ginsburg's dissent in Hobby Lobby. The accompanying five-minute clip is worth watching. One of the more interesting exchanges was Justice Ginsburg's expressed belief that the "five male justices" (in the words of Couric's question) had a "blind spot" (Ginsburg's words, repeated by Couric, and affirmed by Ginsburg) in Hobby Lobby. The same five justices also had a blind spot, Justice Ginsburg volunteered, "in Lilly Ledbetter's case." (Transcript of exchange below the jump.)
This kind of identity-based attribution is problematic in its own right. Think about how this might work in reverse. There were parties on both sides of what Justice Ginsburg calls "Lilly Ledbetter's case." Should the other party have been worried that Justice Ginsburg would be partial to Lilly Ledbetter because the two are women? I don't think that would make too much sense (as opposed to worrying about Justice Ginsburg's perception of the merits because of her ideology and jurisprudence). Would it not be offensive to attribute Justice Ginsburg's Ledbetter vote to a "soft spot" for women, in a manner analogous to Justice Ginsburg's attribution of the Hobby Lobby majority's decision to a "blind spot" for women? Of course it would.
Justice Ginsburg's comment on the five male Justices in Hobby Lobby also reveals a couple possible blind spots of her own. One comes from her Supreme-Court-centric view of the issues in the case. Numerous female federal judges have entered injunctive relief of one sort or another for plaintiffs challenging the contraceptives mandate. What explains their votes? Is the reasoning of Justice Samuel Alito and his brethren in the Hobby Lobby majority any better or worse, for example, when prefigured by the reasoning of Judge Diane Sykes (7th Cir.) or by the analysis of Judge Lee Rosenthal (S.D. Tex.)?
Another apparent blind spot emerged in Justice Ginsburg's description of the legal basis for Hobby Lobby. It is easy enough to pass off as a minor slip her characterization of the decision as involving the "constitutional right" of employers to act as Hobby Lobby did. But "it's just a verbal slip" became less likely when Justice Ginsburg went on to say that the majority had incorrectly interpreted the Free Exercise Clause. Does Justice Ginsburg have a blind spot for RFRA and the congressional judgment embodied in that super-statute? That statute, and not the Free Exercise Clause, is the basis for the Hobby Lobby decision.
Having disagreed with the gist of Justice Ginsburg's discussion of Hobby Lobby, I would like to end on a note of partial agreement. As the father of three daughters, although not a federal judge, I am sure Justice Ginsburg is right, as a general matter, that "daughters can change the perceptions of their fathers." I am less certain, though, about her deployment of that assertion in this context. Justice Ginsburg may have been thinking about this recent paper by Adam Glynn and Maya Sen. Their analysis of votes by federal circuit court judges indicates that, in their words, "conditional on the number of children a judge has, judges with daughters consistently vote in a more feminist fashion than judges who have only sons."
As with much empirical research on lower court judges, it is unclear (at best) whether the results can be used to explain the behavior of Supreme Court Justices. But if we're going to go down this road, it may be worth noting that four of the five justices in the Hobby Lobby majority have daughters. Justice Scalia alone has more daughters (four) than all four dissenting justices combined (three). Chief Justice Roberts, Justice Kennedy, and Justice Alito each have one daughter.
Monday, July 28, 2014
Split panel of Fourth Circuit holds Virginia's marriage laws violate a fundamental individual right, protected by the Due Process Clause, to marry a same-sex partner
A split panel of the United States Court of Appeals for the Fourth Circuit held today that Virginia's definition of marriage to require a man and a woman violates the Due Process Clause. Judge Floyd wrote the opinion for the court in Bostic v. Schaefer, in which Judge Gregory joined. Judge Niemeyer authored a dissent.
I hope to have more analysis of the case down the road. My initial reaction is that the court's analysis in terms of fundamental rights presents a doctrinally clearer picture of the arguments on both sides.
If Glucksberg supplies the right framework of analysis (as I believe it should), then the majority's conclusion is untenable for the reasons set forth in Judge Niemeyer's dissent. The panel majority distinguishes Glucksberg by saying that Glucksberg's analysis "applies only when courts consider whether to recognize new fundamental rights." The crucial move, then, is the court's determination that "the fundamental right to marry encompasses the right to same-sex marriage." And that determination turns on a reading of Lawrence and Windsor. These decisions, Judge Floyd says, "indicate that the choices that individuals make in the context of same-sex relationships enjoy the same constitutional protection as the choices accompanying opposite-sex relationships." Yet this attempt to harmonize Lawrence and Windsor with Glucksberg is unpersuasive. Those cases simply ignore Glucksberg and its fundamental-rights-based analysis rather than supply guidance for how to define the scope of fundamental rights.
Given how the Fourth Circuit decided this case and the fact that it is from Virginia, Bostic may turn out to be an attractive vehicle for a range of Justices. It is reasonable to assume that Justice Kennedy will probably continue to ignore Glucksberg's analysis. Yet this Virginia case provides a promising vehicle for maximizing the likelihood that the Court must confront its doctrinal incoherence in the substantive due process arena. After all, there would be something awkward about a Supreme Court decision that ignores the basic concept of a "fundamental right" that the lower court in a case like this thinks the Court's doctrine requires it to use. On the other side, those Justices interested in recognizing a constitutional right to same-sex marriage may be attracted by the symbolic significance of deciding same-sex marriage out of the same state that supplied Loving v. Virginia.
Second Circuit upholds display of 9/11 cross in the National September 11 Museum
A panel of the United States Court of Appeals for the Second Circuit today unanimously upheld against Establishment Clause challenge the display of a 17-foot cross from the wreckage of the World Trade Center in the National September 11 Museum. (HT: @Edmannino) The decision also rejects an Equal Protection Clause challenge premised on the denial of funds for an accompanying symbol commemorating atheists. Judge Raggi wrote the opinion for the court in American Atheists, Inc. v. Port Authority of New York and New Jersey, in which Judge Lynch and Judge Chin joined.
From the opinion's concluding summary:
1. Displaying The Cross at Ground Zero in the National September 11 Museum does not violate the Establishment Clause because:
a. the stated purpose of displaying The Cross at Ground Zero to tell the story of how some people used faith to cope with the tragedy is genuine, and an objective observer would understand the purpose of the display to be secular;
b. an objective observer would not view the display as endorsing religion generally, or Christianity specifically, because it is part of an exhibit entitled “Finding Meaning at Ground Zero”; the exhibit includes various nonreligious as well as religious artifacts that people at Ground Zero used for solace; and the textual displays accompanying the cross communicate its historical significance within this larger context; and
c. there is no evidence that the static display of this genuine historic artifact excessively entangles the government with religion.
2. In the absence of any Establishment Clause violation or any evidence of discriminatory animus toward atheists, the Museum did not deny equal protection by displaying The Cross at Ground Zero and refusing plaintiffs’ request to fund an accompanying symbol commemorating atheists.
The outcome seems plainly correct. The court's extensive reliance on Lemon and relatively light discussion of Town of Greece will be disappointing to those (like me) who think the methodological approach of Town of Greece should apply to Establishment Clause analysis beyond legislative prayer.
Friday, July 25, 2014
Chesterfield County, Va. switches from invited clergy to legislators' own prayers
This news is a few days old, but I thought it appropriate anyhow to follow up on my prior post about the post-Town of Greece legislative prayer practice of Chesterfield County, Virginia.
The Board of Supervisors has changed its legislative prayer policy. Starting next year, the supervisors will rotate among themselves in delivering an invocation or presiding over a moment of silence. This is a shift away from a practice of inviting ordained clergy of monotheistic religions, which some contended was unconstitutional under a perceived non-discrimination requirement in the Supreme Court's decision in Town of Greece v. Galloway.
The shift is prudent even if not constitutionally required, and it may be that the supervisors were closer in thinking to Josh Blackman's assessment of Town of Greece than to mine. The decision may also reflect the reality that the County would be on the hook for plaintiffs' attorneys' fees and costs if the County litigated and lost, but the County could not recover it own fees and costs if the County litigated and won.
Thursday, July 24, 2014
Does the ACLU's Steven Shapiro regret the organization's amicus curiae brief in McCullen v. Coakley?
SCOTUSBlog is running a series of video interviews with the ACLU's Steven Shapiro. Part 4, posted this morning, is on amicus curiae briefs. As Mr. Shapiro undoubtedly knows, one of the most important assets that an organization like the ACLU has in advocating in particular issue areas is credibility. Unfortunately, the ACLU lost a lot of credibility this past Term because of its amicus curiae brief in support of neither party in McCullen v. Coakley. Were such a question appropriate in the context of these videos (and it is not, I think), it would have been interesting to ask Mr. Shapiro whether he regrets filing this brief.
Mr. Shapiro was counsel of record on what has to be one of the least speech-protective briefs ever filed by the ACLU in the Supreme Court of the United States. The longest portion of this brief's defense of the facial constitutionality of Massachusetts' public sidewalk speech restrictions argues that the law is a narrowly tailored time, place, and manner restriction. See Section I.B. The ACLU did not pick up a single vote for this position on the facial constitutionality of the Massachusetts law--not from Justice Ginsburg, nor Justice Breyer, nor Justice Sotomayor, nor Justice Kagan, nor the Chief Justice. Indeed, the Court held unanimously that the law was facially unconstitutional.
The ACLU's McCullen brief did leave open the possibility that the Massachusetts statute could be invalid on an as-applied basis. But this portion of the brief probably would have been taken by the Justices and their clerks as a half-hearted attempt to save face rather than a serious attempt to protect freedom of speech. If this were not apparent from the Table of Contents alone, readers might have been tipped off by footnote 5, which explains the how the ACLU's position "evolved over time."
McCullen now sets the standard for serious narrow-tailoring scrutiny of content-neutral speech restrictions. This unanimous decision is likely to protect significant amounts of speech that otherwise would not have been protected without it. And the ACLU was on the wrong side.
There once was a time when the ACLU defended the First Amendment even when doing so conflicted with other (politically, not classically) liberal goals. See, for example, the ACLU's brief (with Mr. Shapiro as counsel of record) in Hill v. Colorado. But the McCullen brief suggests that those days are over.
Not all evolution is progress.
Shame on the ACLU for abandoning free speech principles in McCullen v. Coakley.
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