Happy Birthday Justice Stevens

Last week United States Supreme Court Justice John Paul Stevens celebrated his 87th birthday. At 87 Stevens is the third oldest Justice in Supreme Court history. The record is held by Oliver Wendell Holmes, who was 90 when he retired from the Court. Stevens is currently the longest serving member of the Court (31 years), but he would need to serve until 2012 to break the record of service held by Justice William O Douglas (36 years). Students may remember that one is appointed to the Federal Court in the United States for life. Most judges take this seriously and either die in office or retire well beyond the "normal" age of retirement. These lifetime appointments are somewhat unique in the Common Law system. Judges in England must retire at age 70, while Supreme Court Justices in Canada must step down upon reaching age 75.

Court Reverses Itself

A decision handed down by the U.S. Supreme Court last week nicely illustrates several recurring themes in most of our common law courses. Early on students learn that because of the concepts of precedent and stare decisis courts are suppose to follow rules created earlier in time by higher court decisions. They are then taught that the highest court in most common law countries are not really obligated to follow their own past decisions, only the lower courts are. Finally they realize that when high courts don't follow their own past decision it's primarily because some or all of the members of the court have changed.

Last week's decision illustrates this point very nicely. In 2000 the United States Supreme Court struck down a law prohibting a particular kind of abortion procedure because it failed to make an exception that would allow the procedure to be used if needed to protect the health of the woman. This exception has been part of Supreme Court abortion rulings for well over 30 years. Last week the Court reversed itself saying that such a law was valid despite the fact that no exception for the woman's health existed. So what changed between 2000 and 2007? Simple really. President Bush was able to appoint two new members to Court because of the death of one Justice and the retirement of another. Those two appointments shifted the majority view of the court on this matter in a way that basically led the Court to reversing itself.

The Deliberative Body

In last week's Constitutional Law classes I put forth the idea that of the Houses of Congress (Legislative Branch), the Senate is the far more deliberative body. In support of this I explained how Senators serve six year terms, which means they are a bit less influenced by public opinion and more willing to look closely at issues. More importantly, though, is the filibuster power. It takes only 41 senators to stop debate on a bill. 41 you may ask. Well, as I explained last week it takes 60 senators to terminate the filibuster power being used on a piece of legislation. A recent debate in the United States Senate over prescription drug prices nicely illustrates how this power works. Follow the link below to an Associated Press article describing this debate and see if you can understand exactly what happened, and more importantly why a minority of Senators was able to stop the bill in question from being voted on by the full Senate.

• Senate Blocks Medicare Drug Price Bill
  

Canadians Celebrate Charter of Rights

Canadians are celebrating the 25th anniversary of the passage of the Charter of Rights, Canada's version of a bill or rights enshrined in the constitution. Prior to it's passage, Canadians were protected from government abuse by the Canadian Bill of Rights, which was federal law that could be changed at the whim of Parliament. By adding rights to the Constitution itself, Canada took the important step of making these rights basically untouchable by the majority-elected Parliament and subject only to Supreme Court interpretation and/or amendment of the constitution itself, not an easy task. In celebration of this anniversary, the Toronto Globe and Mail polled Canadian legal scholars to see what are the ten most influential Supreme Court cases interpreting the Charter. Not surprisingly many of the cases deal with issues that much of the western world, and specifically the United States, has been grappling with for the past few decades: abortion, gay rights and the rights of criminal defendants.

Electoral College

Yesterday during the introduction lecture for U.S. Constitutional Law we discussed the many ways that the American form government created by the Constitution is far from a direct democracy. One example given is how the President is elected, where the winner of the popular vote can still lose the election, as was the case in 2000 when Al Gore won the most votes across the country and still lost the election. The reason for this, as we discussed, is the Electoral College that actually elects the President (click here for more on the Electoral College). As I mentioned in class, in all but two states the winner of a given state gets all of that state's Electoral College votes. Thus, a person could win a big state, say Florida, by only a few hundred votes. Yet the loser of the state gets absolutely none of that state's Electoral College votes, in Florida's case 27 votes (see above map for allocation of Electoral Votes among the states). To make a long story short, another state seems to be joining Maine and Nebraska in allocating their Electoral College votes differently. Maryland has just passed legislation that would award all of its Electoral College votes (10) to the winner of the national popular election and not the person who receives the most votes cast in Maryland. This is obviously part of a movement to make the Electoral College irrelevant without having to change the U.S. Constitution.

Canadians Want to Elect Judges

The selection of judges in common law countries varies from jurisdiction to jurisdiction. In the United States, where you have a federal court and 50 individual state court systems, the selection of judges is a mixed bag. All federal judges are appointed by the President for life terms. But the selection of judges at the state level varies. A growing number of states allow their citizen to elect judges, like they do other political offices. It appears that a majority of Canadians like the idea of judges campaigning for their spots. The Toronto Globe and Mail reports that two-thirds of Canadians want to abandon their current judicial selection system and replace it with elections. Not everyone in Cananda thinks this is a good idea. Ontario's Chief Justice questioned whether the country's judicial system would remain impartial noting that:

if Canadian judges felt compelled to impose popular verdicts and sentences to ensure their re-election, “it could really destroy the very best traditions of an independent judiciary. I think it would be a tragic initiative for the administration of justice.”

The Chief Justice also cautioned that money needed to run judicial campaigns could lead to abuse.

Posts Resuming

I will be posting again this week with the start of the new semester. Stay tuned.