The Docket

The Prospect's legal affairs blog

A Probe Too Far

The anti-choice strategy of using piecemeal abortion regulations that, taken together, substantially restrict access has been all too successful in many states. One reason for this is that, whatever their lack of policy merits , regulations like waiting periods and parental involvement requirements tend to be popular. Focusing on whether abortion should be legal is favorable terrain for supporters of reproductive rights, but focusing on specific regulations regrettably tends to favor opponents of reproductive freedom. One interesting thing about Virginia's appalling mandatory transvaginal ultrasound law is that unlike many of the schemes cooked up by anti-choice forces, it is proving to be highly unpopular. The Republican governor Bob McDonnell is still overwhelmingly likely to sign the bill, but has suddenly become notably restrained about defending it. What explains the public opinion victory for the bill's opponents? I would guess that two factors are relevant. First, there's the...

Not in Montana

(Flickr/polytikus)
At the opening of each oral argument session, a Supreme Court clerk announces, “All those having business before this honorable Court draw nigh and you shall be heard.”But does the Court really listen? We are about to witness an interesting case study. Late last week, the Court announced a stay of the Montana’s Supreme Court’s judgment in Western Tradition Partnership v. Bullock . In that case , a majority of the state court in essence said to the Supreme Court majority, “You boys don’t know enough to pour water out of a boot.” The opinion was a direct challenge to the Court’s most controversial decision in at least a decade— Citizens United v. Federal Election Commission . The Court will now consider a formal petition for cert., due by the end of next month. Citizens groups, states, and business groups can file amicus briefs on the issues raised by the case, laying out their critique of Citizens United . Two Justices of the Court have invited them to do exactly that. In a statement...

No Celebrity Gossip Here

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United States v. Alvarez, which I wrote about yesterday , is fascinating in its complexity. The government in this case has asked the Court to hold that it can punish people who lie, regardless of whether they lie to extort money, win political office, or just to impress people at the corner tavern. The principle is breathtaking in its sweep. In the past, the Court has approved statutes that punish knowingly reckless false statements of fact—but only when those statements cause some measurable harm. Examples are a defamatory lie about another person (“X is a serial killer”); a lie used to extract money from a credulous listener (“I own that bridge and I’ll sell it to you); or one told for the purpose of inflicting emotional damage on another (“X’s father beat his mother regularly during X’s formative years”). But Alvarez concerns what we might call the semi-crazy lie. The defendant told a public meeting that he’d been awarded the Medal of Honor; he hadn’t. The federal government...

Damn Lies and Double Jeopardy

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The Supreme Court comes back into session Tuesday. On that day, the Justices will earn their salaries (and then some) by considering the following questions: Whether Section 8(b) of Real Estate Settlement Procedures Act prohibits a real estate settlement services provider from charging an unearned fee only if the fee is divided between two or more parties. Whether , under 28 U.S.C. § 1920(6), costs incurred in translating written documents are “compensation of interpreters,” which under the statute are awarded to the prevailing party in a federal lawsuit. Reader, these questions are important, but forgive me if I draw the veil of modesty over those Tuesday cases in favor of Wednesday’s, which are important too—and pose more broadly interesting puzzles. The first, Blueford v. Arkansas , is a double-jeopardy case. The Fifth Amendment provides that no person “shall ... be subject for the same offense to be twice put in jeopardy of life or limb.”...

Government Has to Give Reasons

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The Ninth Circuit’s opinion in Perry v. Brown drew a letter to the Court suggesting the decision stemmed from “mold infestation” in court buildings. The correspondent is not the only person who hates the decision but has trouble explaining, in legal terms, why. The case illustrates the concept of “governmental interest” in constitutional law. My Con Law prof, Walter Dellinger, once said the course could be summed up in two sentences: “When government wants to do something to you, it has to give a reason. When it wants to do something really bad, it has to give a good reason.” Judges weigh “stuff government wants to do to you” against government’s reasons, or “interests.” Government wants to do a lot of things—keep order in the streets, prevent outbreaks of the Black Death, make the downtown mall nice, etc. In constitutional law, most of those interests are “legitimate”; there’s no reason government can’t pursue them. Only a few are “compelling,” which means things would descend into...

Birth Control Chess

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Last week, I argued that it was unlikely that many critics of President Obama's contraceptive coverage requirement would be mollified by a compromise that would allow a religious exemption but still mandate that employees be provided with contraceptive coverage at no extra cost. Apparently, we're about to find out if that’s the case. I was very concerned when I first read that Obama was planning to announce a "compromise," and part of me still wishes he had just stood firm given the that the arguments against the new regulation were so bad. But, as described, I believe that the “ accommodation ” that was announced by the administration is acceptable. The bottom line is that employees will still be able to receive contraceptive coverage at no extra cost, and as NARAL's statement explains "[i]t guarantees that women will encounter no barriers from their bosses or insurance plans in getting birth control without a copay." As long as the substantive rights and benefits of employees are...

Sonia Sotomayor's Radical Judicial Activism

(Sesame Street)
This week, the Senate Judiciary Committee approved a bill requiring TV access to Supreme Court arguments. Justice Sonia Sotomayor isn’t waiting: She made her debut on Sesame Street this week. Though she and Maria were just trying to enjoy “un cafecito,” they were interrupted by Baby Bear, who demanded a judgment in his case against Goldie Locks, who had (as the record has long reflected) broken his tiny chair during a most flagrant trespass quare clausum fregit . Sotomayor listened to the twin arguments and suggested that Goldilocks take her personal glue, fix the chair, and “then the two of you can live happily ever after.” Now this is all very well, but what sort of example does it set for the young? Isn’t it the worst sort of unprincipled activism? Why did she not turn to the wisdom of the Founders? Not long ago I was sternly lectured by Professor Michael Ramsey of the University of San Diego for an irreverent post about Justice Antonin Scalia’s opinion in United States v. Jones...

Synecdoche, California

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Many progressive legal commentators, including Dahlia Lithwick and Garrett Epps , have praised Judge Stephen Reinhardt’s opinion holding that California’s Proposition 8—a referendum passed in 2008 making same-sex marriage illegal—is unconstitutional. The praise, however, has not been unanimous. At Balkinization, Jason Mazzone is harshly critical of Reinhardt’s opinion, arguing that “it is dishonest and foolish” and that the Ninth Circuit should “have written a powerful opinion setting out why a ban on same-sex marriage violates the Equal Protection Clause of the Fourteenth Amendment” rather than resting on narrow grounds. In an ideal world, it would be better if the Supreme Court were to declare a right to same-sex marriage that applied immediately to all 50 states. However, I largely disagree with Mazzone’s critique. Most important, it misstates Reinhardt’s analysis and is far too optimistic about the odds that five Supreme Court justices would be willing to strike down bans on same-...

In Prop. 8 Ruling, a Liberal Lion Coos

(AP Photo/Eric Risberg, Pool) Senior Circuit Judge Michael Daly Hawkins, left, Circuit Judge Stephen R. Reinhardt, center, and Circuit Judge N. Randy Smith hear arguments during a hearing in the Ninth Circuit Court of Appeals in San Francisco. Today, the federal appeals court in San Francisco upheld a lower-court decision finding California's ban on same-sex marriage unconstitutional. S tephen Reinhardt, a judge on the Ninth Circuit Court of Appeals,* has been called almost everything in the book. Conservatives slaver at the mention of his name; even liberals sometimes criticize his audacity. The Onion once ran a deadpan story reporting that he had “ruled the private celebration of Christmas unconstitutional ... ‘[i]n accordance with my activist agenda to secularize the nation.’” The last great liberal lion of a once-numerous pride, Reinhardt has written dozens of decisions that embody old-style judicial liberalism (including one holding that terminally ill individuals have a right to...

Surveillance in a Wireless Age

T he Supreme Court unanimously held Monday that the installation of a GPS device in a person's car constitutes a "search" under the Fourth Amendment (which prohibits "unreasonable searches and seizures”). This unanimity is somewhat misleading, however, as the Court split with respect to what theory of the Fourth Amendment should be applied going forward and left a crucial question unanswered. The Court has often struggled to adapt the Fourth Amendment to technologies that expand the reach of the state. As is reflected in the amendment’s language ("The right of the people to be secure in their persons, houses, papers, and effects") government searches at the time of the amendment's adoption generally involved the physical invasion of property. But various technological innovations have allowed the state to increase its surveillance authority without conducting physical searches, and the Supreme Court has sometimes been behind the curve. In the 1928 case Olmstead v. United States , most...

A Preview on Voting Rights

In her report about the recent oral arguments in a Texas redistricting plan that was created by a panel of three federal judges, Dahlia Lithwick noted a compromise floated by Justice Kagan: Clement and Garza seem almost to agree on a Kagan-suggested compromise whereby the lower court starts again with the new Texas map, but Texas bears a burden of proof to show that each district isn’t unconstitutional. Garza says that if it keeps the burden of proof on Texas it would be “far more preferable.” Clement seems to concede that it’s better than the court-drawn maps. As it turns out, the Supreme Court has done something along these lines in its decision today. In a unanimous, per curiam (that is, unsigned by any single member of the Court) opinion , the Supreme Court rejected the redistricting plan created by the panel without fully reinstating the plan drawn up by the Texas legislature. The Court's opinion outlined a new set of standards for the panel to follow which, according to election...

Colbert “out-legals” Justice Stevens

Just in case the Republican primary is not providing enough entertainment… here’s Stephen Colbert arguing with John Paul Stevens about Bush v Gore , Citizens United , and his greatest regrets (“this interview”).

Right to an Attorney

The case of Corey Maples provides a disturbing look at the death penalty system in the United States and underscores how even people facing execution are often not represented by adequate counsel at any stage of the criminal process. In Maples’s case, the attorneys assigned to represent his appeals quit midway through the process, and yet the state of Alabama blamed Maples for his failure to comply with procedural requirements he had no way of fulfilling. Yesterday, the Supreme Court corrected this obvious mistake by ruling that Maples had a right to appeal in a 7-to-2 decision. But this case will leave the pervasive problem of bad legal representation in our criminal justice system essentially untouched. The issues that Maples had in finding adequate representation did not start with the appeal that led to the Supreme Court taking up his case. As the Court pointed out, “[a]t trial, he was represented by two appointed lawyers, minimally paid and with scant experience in capital cases...

Eye of the Beholder

AP Photo/J. Scott Applewhite
Taking powerful new scientific evidence about the unreliability of eyewitness identification into account, last year the New Jersey Supreme Court established strict rules to determine when eyewitness identifications are unreliable enough to be inadmissible. In a case decided earlier this week, Perry v. New Hampshire , the Supreme Court had an opportunity to follow suit with a reconsideration of its own. Regrettably but not surprisingly, the Court instead decided to ignore the new evidence. This unfortunate decision is certain to lead to many more innocent people being convicted even though a standard that is workable and more consistent with constitutional values is available. Perry required the Court to choose between two different systems for determining when eyewitness testimony should be presented to a jury. At a minimum, the Court’s precedents seemed to require that judges exclude eyewitness identifications that were the result of police “rigging”— that is, when police...

Court Overturns Oklahoma Ban on Sharia Law

Combining a variety of conservative culture-war obsessions, Oklahoma voters in 2010 passed an initiative that would "forbid courts from looking at international law or Sharia Law when deciding cases." Today, the Tenth Circuit Court of Appeals ruled that the initiative violated the Establishment Clause of the First Amendment. The Court's reasoning is straightforward and correct. As the panel unanimously concluded, the initiative singled out the Muslim faith among religious laws for discrimination. Because it implicates the free exercise of religion—a fundamental right—the voter-approve amendment has to survive the legal test of "strict scrutiny": That is, it has to be 1) narrowly tailored to 2) address a compelling state interest. The ban on sharia law clearly fails both tests. Not only is there no "compelling state interest" for the law; proponents of the initiative failed to "identify any actual problem the challenged amendment seeks to solve." Indeed, they admitted at the...

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