Thursday, September 28, 2006

Reflections from Justice Wilcox

The Milwaukee Chapter of the Federalist Society has a link to a great interview given by Justice Jon Wilcox. Justice Wilcox is retiring from the Wisconsin Supreme Court and decided to sit down with WisPolitics for a discussion about his time on the bench. If you have an interest in the Wisconsin Supreme Court in general and Justice Wilcox specifically, it's worth a look.

Now that's my idea of an afterlife!

Hello fellow Fed's,
Mr. Adams here, I just finished reading Joseph J. Ellis' Founding Brothers, The Revolutionary Generation, a great read and very informative, but I would expect nothing less from the winner of the Pulitzer (also check out his great bio of Jefferson American Sphinx). I felt that I should share this next passage written by my distant, but genealogically proven, relative John Adams to Thomas Jefferson discussing the possibility of the afterlife.

"If it would be revealed or demonstrated that there is no future state, my advice to every man, woman, and child would be, as our existence would be in our own power, to take opium."

What can I say, it simply runs in the family.

Mr. Adams

Wednesday, September 27, 2006

The Wisconsin Marriage Amendment: The Debate Over Gays, Civil Unions, & Beyond

Marquette University Law School's GLBT-Straight Legal Society and Federalist Society have organized a panel discussion titled "The Wisconsin Marriage Amendment: The Debate Over Gays, Civil Unions, & Beyond". It will take place on Tuesday, October 3rd in Sensenbrenner Hall with refreshments at 11:45 AM in Eisenberg and the discussion at 12:15 PM in Room 307. Panelists are Jordan Lorence of the Alliance Defense Fund and Brenda Lewison of the Law Office of Arthur Heitzer. The event is co-sponsored by the Christian Legal Society, the National Lawyers Guild, and the American Constitution Society. Seating will be limited, so please RSVP here.

Tuesday, September 26, 2006

The Major Court Battles on the Horizon

US News and World Report has a great article about the upcoming term of the Supreme Court. We are days away from the beginning of the 2006 term. The article makes the point that there are a lot of familiar battles on the horizon. Up first is the always contentious abortion issue...
When the U.S. Supreme Court reconvenes next week after its summer break, justices will be asked to decide whether health risks alone should guarantee women access to controversial late-term abortions, typically-though rarely-performed when pregnancies have progressed beyond 20 weeks.

That, in and of itself, is significant-"one of the key cases of the term," says Leonard Leo of the conservative Federalist Society. But when the court considers the constitutionality of Congress's Partial-Birth Abortion Ban Act of 2003-which has no exception for a mother's health-it will also shine a light on the emerging dynamics of the newly formulated and deeply divided panel. And the most closely watched jurist won't be Chief Justice John G. Roberts or his fellow sophomore, Justice Samuel Alito, but Justice Anthony Kennedy, on whose vote these decisions will most likely turn.
I disagree with the authors on this point. I will be closely watching all three men. Justice Kennedy should be watched because he made his views on partial birth abortion known in his vigorous dissent in Stenberg v Carhart. Will Kennedy stick to his guns (and his dissent) or will he honor the precedent of the 5-4 majority opinion? I think he's going to stick with his dissent. Justice Kennedy, like all of the Justices, has strong views on the Constitution and law. Stenberg was a recent case and a 5-4 decision. He will not bow to a precedent that young and divided, especially when he feels this strongly.

Chief Justice Roberts and Justice Alito should be watched for similar reasons. While they do not have recorded views on partial birth abortion, they do have the same precedent issue that Justice Kennedy has. Will they follow Stenberg? My best guess is no. I think that there are five votes here to uphold the PBA bans. Of course, this case and its subsequent decision will be big news items.

Another important reason to watch Roberts is how he assigns the opinion (assuming that he is in the majority). Will he take the opinion himself, giving us a more in depth view on the new Chief's abortion jurisprudence? Will he give the opinion to Scalia or Thomas to get a "flamethrower" opinion? Will he give it to Kennedy, if he thinks it's necessary to hold Kennedy's vote? Will he give it to Alito, Justice O'Connor's replacement? The language of the opinion may give us special insight into Alito's or Roberts' views on the abortion issue.

Up next is another divisive topic, affirmative action and race issues in schools...
The court will very likely be deeply divided over challenges to the use of race in assigning students to secondary schools in Seattle and Jefferson County, Ky., which includes Louisville. Parents in both cases, joined by lawyers for the Bush administration, claim that their children's constitutional right to equal protection was violated-in Seattle, when their children were denied enrollment in schools of their choice because race was used as a tiebreaker in an open-enrollment system, and in Jefferson County, when their children were bused long distances for a race-conscious school assignment plan.

Three years ago, in the last affirmative action challenge, involving the University of Michigan and its law school, justices approved the use of race in college admissions-but only as part of a "holistic" evaluation of applicants and with no quotas or points system attached to the policy. The Seattle plan, which takes into consideration a student's race if any individual school is oversubscribed or does not reflect the district's student racial breakdown of 60 percent minority and 4o percent white, was upheld by the reliably liberal Ninth Circuit. The Sixth Circuit endorsed the Kentucky plan, which mandates that each school have a black enrollment of between 15 and 50 percent.
It hasn't been long since the Court tackled this issue in higher education in Grutter v Bollinger and Gratz v Bollinger. With Justice O'Connor gone, the new Roberts Court gets a chance to put Grutter to the test. Remember, this is another area where Justice Kennedy joined Rehnquist, Scalia, and Thomas in dissent. This is also another area where Roberts' and Alito's views on stare decisis are material. They have the ability to form a five vote majority here. This could severely limit Grutter or even overturn it.

Rounding out the controversy trifecta is global warming...
With the U.S. rejection of the global Kyoto Protocol to reduce greenhouse gases and the failure of Congress to pass similar legislation, Massachusetts is leading a team of a dozen states, along with environmental groups, in arguing that the Environmental Protection Agency must regulate greenhouse gas emissions, specifically those from motor vehicles, according to principles defined in the Clean Air Act.

The Bush administration has opted to tackle global warming with a policy that promotes technology development and voluntary measures to reduce greenhouse gases. But the plaintiffs argue that the policy fails to enforce Section 202 of the act, which says the agency must regulate automobile emissions that "cause, or contribute, to air pollution which may reasonably be anticipated to endanger public health or welfare."

The EPA has refused to issue a formal judgment on whether carbon dioxide and other warming gases are pollutants. It argues that the act was never intended to regulate greenhouse gases, nor would it provide such regulation even if it could because federal policy is already in place. A ruling for the plaintiffs would very likely include sweeping new regulatory standards for all industries.
The article makes reference to the very splintered DC Circuit opinion. It's possible that all of the excitement over this case will be for nothing. The Court may decide this on a standing issue. Under Lujan v Defenders of Wildlife, the plaintiffs have to establish injury and redressability requirements. It is unsure if they can. The DC Circuit judges tackled this issue, divided as ever. Judge Sentelle said that the plaintiffs failed to establish standing. Judge Randolph assumed that they had standing. Judge Tatel found that Massachusetts itself had standing. All of the discussion about Sections 202 and 302(g) of the Clean Air Act might be premature. This case could end in a whimper.

So far, these are the cases to watch. The Phillip Morris punitive damages case will be interesting too. This is an issue that isn't conservative/liberal. Roberts and Alito have the power to make a huge impact here. We'll just have to wait and see what happens.

Friday, September 15, 2006

Debate on the Constitution at Marquette

From Professor John McAdams' blog...


4:00 - 6:00 PM

Panel on
"Is the ("Living"?) Constitution a Sound Basis for Our Government Today?"


Gordon Hylton, Marquette Law School
John McAdams, Political Science
Jeffrey Sachse, Political Science
Christopher Wolfe, Political Science

Refreshments provided
Prof. McAdams adds...
Look for this to end up as a debate between McAdams and Wolfe on the one side, and Sachse and Hylton on the other. The issue: whether judges have a right to blow off the expectations of the Founders and interpret the Constitution to mean what they want it to mean.
I'm going to try to attend. It looks like a very interesting event.

Cross posted on Eminent Domain

Wednesday, September 13, 2006

Eugene Volokh Explains the Federalist Society

Many people have no idea what the Federalist Society is, what it stands for, and who its members are. Politicians, activists, and some members of the media have attempted to portray the Federalist Society as a right wing cabal, secretly plotting to subvert the Constitution to meet their ideologically driven ends. In some circles, calling someone a member of the Federalist Society is a slur. I think it is important to clear the air and let everyone know what this group is all about. I can think of no one better to explain the Federalist Society than Prof. Eugene Volokh (this year's Boden Lecturer at MULS).

In this article from the Washington Post entitled "Our Flaw? We're Just Not Liberals," Prof. Volokh lets outsiders know what the Federalist Society is all about...
The Federalist Society is a group of conservatives, libertarians and moderates who share two things: an interest in law and a sense that the liberal legal establishment often (not always) gets things wrong.
[O]ur common bond is just that most of us fall somewhere vaguely right of the center of the political spectrum most of the time. Many leading legal academic and professional institutions are dominated by liberals: A recent study finds, for instance, that 80 percent of U.S. law professors describe themselves as "Democratic or leaning Democratic," and only 13 percent call themselves "Republican or leaning Republican." We who dissent from this orthodoxy naturally enjoy talking with each other, even when -- especially when -- we disagree.

The society is genuinely open to a variety of views. It takes no position on legislation or on candidates. It files no lawsuits or friend of the court briefs. Its charter is to create discussion, not to lobby, litigate or get out the vote. It welcomes moderates and liberals, if they want to participate, as well as libertarians and conservatives; anyone is free to join.
The Federalist Society is all about ideas. We like to talk about the law and the Constitution. We like debates because, as Prof. Volokh puts it, "We think that a fair debate between us and our liberal adversaries will win more converts for our positions than for the other side's."

What do Federalist Society members believe? Many things, depending on the particular member...
We have no articles of faith. Some of us are pro-choice, others pro-life. Some Federalists -- such as Gary Lawson, a member of the society's board of directors and a professor at Northwestern University School of Law -- think the Constitution should be interpreted primarily based on its original meaning. Others focus more on precedent or on evolving tradition. Some, like professor Randy E. Barnett of Boston University, argue that the Constitution protects a broad range of rights beyond those specifically listed in the first eight amendments. Still others, such as Supreme Court Justice Antonin Scalia, who was a faculty adviser to the University of Chicago's chapter of the Federalist Society in the 1980s, believe that decisions about such unenumerated rights should be left to the democratic process, not to judges.

Many Federalists -- such as Paul Cassell, a prominent critic of Miranda v. Arizona, who teaches at the University of Utah College of Law -- believe the police deserve more flexibility than they now have. Some, like Roger Pilon of the libertarian Cato Institute, are much more skeptical of government power. And still others fall somewhere in between.
The variety of viewpoints that one finds in the Federalist Society is one of its greatest strengths.

I welcome everyone to attend one of our many events during the school year. I'm sure that you will find it interesting and thought provoking. Our goal is to encourage debate and discussion about the law, and hopefully these events help achieve that goal.

Tuesday, September 12, 2006

Former First Lady Barbara Bush is a Handsome Woman

This is my first posting and I will make it a short and, hopefully, painless one. I simply wish to note that I believe that former First Lady Barbara Bush is a very handsome woman. Every time I see her snowy white hair, her stately high-necked skirt suits, and her steady, powerful gaze I become slightly weak in the knees. Oh how I wish that I had been born a generation earlier and into the Walker/Bush clan so that I might have swept her off of her feet. If you too feel that former First Lady Barbara Bush is the cat's pajamas then please feel free to respond and let me know what your favorite aspects of this remarkable lady are.

The Patriot

Friday, September 08, 2006

The First Year of John Roberts

The Harvard Political Review has an excellent article summarizing Chief Justice John Roberts' first year on the Supreme Court. Writer Vivek Viswanathan begins the article by talking a bit about Judge John Roberts, the then-nominee to the Court. While Roberts had a long career as a private and government litigator, his judicial record was rather short. Many speculated about the kind of Supreme Court Justice that John Roberts would be. Even after his first year, it's still difficult to tell. Viswanathan makes this point (with a little help from a quotation)...
What Americans learn about Roberts will likely emerge in bits and pieces over a period of many years. Former Solicitor General Charles Fried testified before the Senate Judiciary Committee that if Roberts "tells of his judicial philosophy, it will only be ten or more years from now."
While Roberts' entire judicial philosophy is still unknown, we can learn a bit about him from his votes, opinions, and behavior during the last term.

Viswanathan quotes Professor Cass Sunstein's assessment of Roberts' DC Circuit record. Sunstein believed that while Roberts was definitely a conservative, his opinions had "none of the bravado and ambition that characterize the fundamentalists. His opinions are meticulous and circumspect. He avoids sweeping pronouncements and bold strokes, and instead plays close attention to the legal material at hand." What does Prof. Sunstein think now? Well, the Harvard Political Review asked him...
Roberts, true to his word, has not articulated any judicial ideology or agenda since joining the Court. And yet, for those who hoped that he would stake out a moderate position on the Court, the signs from the first term have not been encouraging. "I'm surprised that he hasn't shown more moderation," Sunstein told the HPR in an interview. Sunstein explained that while Roberts has only served on the Court for a few months, "All early signs, thus far, are of a predictable ally of [Justice Antonin] Scalia and [Justice Clarence] Thomas." He also noted that Roberts "seems to be a fan of clear, simple rules, as Justice [Sandra Day] O'Connor certainly was not."
Well, no forecast is right 100% of the time.

Viswanathan also focuses on Chief Justice Roberts' desire to build a greater consensus on the Court. It may be working too...
Indeed, there have been a remarkable number of unanimous opinions thus far in his term, and surprisingly few concurring majority opinions, which can have the effect of muddling Supreme Court precedent.
It's difficult to say anything definitive based on this. One term of the Court does not provide much data to analyze. Prof. Sunstein is a bit skeptical of Roberts' consensus building plans...
But given the ideological differences among Court members, and Roberts's own conservative leanings, there is no guarantee that those efforts will continue to achieve results, especially when the Court addresses some of the more contentious constitutional issues in America today. "Roberts is apparently interested in achieving consensus, and he may move the Court some; but it would be surprising if he has a huge effect," Sunstein told the HPR. "There are nine independent minds on the Supreme Court."
It will be very interesting to see how the dynamics of the Roberts Court work after so many years of an unchanging Rehnquist Court.

Cross posted on Eminent Domain.