Originalism

How one should interpret the U.S. Constitution is a hotly debated topic in the United States. At the heart of this debate is whether the Constitution should be interpreted in a manner consistent with how the founders back in the 1780s would have interpreted it, or whether the Constitution should be interpreted to reflect changes in modern society. This idea of looking back 230 years to find the proper interpretation of the Constitution is called originalism. Prof. Lawrence Solum has an excellent primer on what originalism is and what all the hubbub is about.

Nine Old Men

With one of the nine current Supreme Court Justices announcing his retirement, the American press is once again interested in the Court. Good timing for us as we begin to learn about how the Court functions and impacts American society. The Christian Science Monitor has an excellent piece on the composition of the Court, which begins:

Like a starting lineup in baseball, the US Supreme Court has nine members. The number seems immutable, as if it’s always been that way. Didn’t they used to call the court “The Nine Old Men”? Isn’t nine justices a requirement written in the Constitution, or the Bill of Rights, or the Declaration of Independence?

read the rest of the article here.

Still An Issue

Students in several of my courses will study the landmark Brown v. Board of Education case. While forcing school districts to desegregate their schools via a court order seems like something from America's past, it turns out that such orders are still needed and handed down by courts in the United States. The law blog Jurist reports:

A judge in the US District Court for the Southern District of Mississippi [official website] on Tuesday ordered [DOJ press release] a southern Mississippi school district to end its practice of allowing students to transfer from their assigned schools and classroom groupings, resulting in a segregated school system.

You can read more about this case here.

A Peek Inside the Court

During a recent visit to the University of Alabama, U.S. Supreme Court Justice Clearance Thomas gave UA law students and audience members a glimpse inside the otherwise secretive decision making process of the Court. As students in most of my courses learn, appellate arguments in the United States usually involve judges asking the lawyers of both parties numerous questions. A typical hearing before the U.S. Supreme Court looks more like an question and answer session than an argument being presented by lawyers. But according to Justice Thomas, this Q&A is at best unnecessary and at worst downright bothersome. The Associate Press reports:

Thomas - who hasn't asked a lawyer a question during arguments in nearly four years - said he and the other eight justices virtually always know where they stand on a case by reading legal briefs before oral arguments.

"So why do you beat up on people if you already know? I don't know, because I don't beat up on 'em. I refuse to participate. I don't like it, so I don't do it," Thomas said during an appearance before law students at the University of Alabama. . . .

Thomas scoffed at the idea that the justices try to use questions to influence the opinions of fellow members of the court. "All nine of us are in the same building," he said. "If we want to sway each other we know where we are. We don't need oral arguments to do that. It doesn't make any sense to me.

The Tuscaloosa News has more on Justice Thomas' visit.

Welcome Back and Congrats to Medical Marijuana Users

After a long break, I will resume posting topics of interest to students in all of my classes on this blog. I'd like to start by revisiting a topic familiar to former students, and one that should be of interest to students in any of my classes where we discuss some aspect of the United States Government. As I wrote back in summer of 2008, medical marijuana users in states like California, where the use of pot for medical reasons was made legal under state law, were put in a bind several years back when the U.S. Supreme Court said that the federal government could arrest and prosecute people for using marijuana, a practice the Bush Administration was in favor of, because it violated federal law. Put another way, the use of medical marijuana was legal under state law but illegal under federal law. What was a medical pot user to do?

Unless you have been in a cave for the past year, you know that there has been a sea change in Washington D.C. with the election of President Obama, and it appears that this change is even reaching the medicinal pot users. How so? Well, the Department of Justice (the federal office responsible for enforcing the federal anti-pot laws) recently decided that the limited federal law enforcement resources may be better spent going after real criminals instead of people who are doing something perfectly legal under their state's law. They will no longer enforce federal law against medicinal pot users in states where the use of medical marijuana is legal.

For those new to this blog and/or this topic, this issue really illustrates: 1) how state and federal governments can have different laws, 2) how the laws can sometimes conflict, and 3) how a change in government can make a huge difference, among other things.

Can Non-Lawyers Judge a Judge?

Students in most of my classes have at some time or another become familiar with how the United States chooses its federal court judges. The short story: the President appoints and the Senate confirms. Students also know that there are no formal requirements needed to become a federal judge, other than being nominated by the President and confirmed by the Senate. In theory, the qualifications of the judicial nominee are to be tested via the Senate confirmation process. However, many of the members of the committee who question the nominee are not trained lawyers. This begs the question: How can non-lawyers judge whether a nominee is qualified to be a federal judge? David Ingram at Law.com has more on this.

Sex Offender Registration Laws

Students in my debate and discussion class are familiar with laws in the United States that force convicted sex offenders to register with the county in which they live. Normally, the county publishes a list of convicted sex offenders living in the county. But some states have been taking this even further recently. Case in point: Florida, where state law says that a convicted sex offender cannot live within 2500 feet of a place where children might congregate. The impact of this law has created a real problem in larger cities like Miami. The Miami Herald has more (including a very fascinating video).

Are Justices Too Powerful?

Back in February the Washington Post printed a provocative article, which began:

If we had it to do all over again, would we appoint Supreme Court justices for life? Allow the chief justice to keep the job forever? Let the court have the final word on which cases it hears and those it declines?

If you are interested in the answers that more than a few law professors in the United States give to these question, I encourage you to read the rest of the article.

Why Marbury Still Matters

Students of American Constitutional Law learn that Article III, the part of the Constitution that created the Supreme Court, did not actually give the Court the power to review the constitutionality of actions taken by the other two branches of government. This power was derived from the court decision, arguably the most important decision in American history, Marbury v. Madison. Newsweek recently had an interesting story explaining why Marbury is still relevant some 200 years later.

The End of Affirmative Action?

The election of Barack Obama as President has some people wondering the whether programs that give preferences to racial minorities to correct for past discrimination are still necessary. National Public Radio recently hosted a half-hour discussion on the topic of Affirmative Action in the aftermath of the historic 2008 Presidential Election.

Banning the Flag

Can a public high school prohibit students from wearing T-shirts bearing the Confederate Flag? According to the Sixth Circuit Court of Appeals, the answer is yes. The court's decision, which is relatively easy reading, can be found here.

Torture Docs Released

The Central Intelligence Agency (CIA) released documents yesterday related to torture techniques used by the prior Administration. The follows on the heals of the release of several legal memos by Attorney General Eric Holder that served as the legal basis in justifying the use of torture. ABC News has more.

Rendered to Guantanamo

Students in my Debating Controversial Supreme Court Case class recently learned about one of the cases dealing with the detainees being held at Guantanamo Bay, Rasul v. Bush. Part of our discussion focused on whether the men being held there are/were truly the "worst of the worst" who were "picked up on the battlefield" as the American public was repeatedly told by Bush Administration officials. The New York Times recently ran an article about a former detainee who was picked up in Indonesia and whisked off to Guantanamo as part of the extraordinary rendition program being run by the U.S. government. The other thing you should check out if you are remotely interested in this topic is a radio program put together by the public radio program This American Life. Acts One and Three by Jack Hitt chronicle the lives of a few of the detainees. If these two pieces don't make you question whether Guantanamo housed the "worst of the worst" than nothing will.

The Government's Lawyer in THE Court

While students in my Debating Controversial Supreme Court Cases course are tackling the social and cultural issues underpinning many of these controversial cases, I am afraid that I have been lax in explaining what happens when these cases actually reach the Supreme Court for argument. In this post I want to address the role of the federal government in cases that reach the Court, or more specifically the role of the Solicitor General.

The United States Solicitor General is the person chosen by the President to argue cases on behalf of the government in the Supreme Court. In addition to actually arguing cases, the Solicitor General may also file amicus briefs in support of a party whose position is favoured by the government.

So why write about this now? Simple. President-elect Barack Obama has appointed the Dean of Harvard Law School, Elena Kagan, to be the next U.S. Solicitor General. This is significant because she will be the first female to hold this post (it should be noted that a woman held this post for six months on a temporary basis during the transition between the Clinton and Bush administrations). The fact that the media has not highlighted this landmark achievement for women may say much about how the presence of women in high powered positions is changing in the United States.

More importantly, Kagan's selection and the people with whom she is surrounding herself illustrates the dramitic shift that is taking place in Washington. For instance, Kagan has chosen a lawyer who argued before the Court on behalf of the rights of detainees at Guantanamo as one of her deputies. Put another way, people who spent the last eight years arguing against positions taken by the Bush Administration will now be representing the government before the Court!

UPDATE - the New York Times has more on Ms. Kagan, including the fact that she will be the first woman to fill the post.

Gun Control

I just wanted to follow up on the very informative presentation that was given in our Debating Controversial Court Cases class last week concerning gun control. As our presenters noted, Washington D.C., the city whose law was struck down by the Supreme Court as violating the 2nd Amendment, is busy trying to pass new gun ownership restrictions. The Associated Press had a piece on the subject yesterday. It's worth a look if you are interested in the topic.

Student Free Speech

A few weeks ago in my Debating Controversial Court Cases class, we had a lively discussion about the Tinker v. Des Moines case and whether students should have free speech rights in schools. As I mentioned in class, it seems like the Courts deal with this issue often as they struggle to balance the free speech rights of students with the interest of schools to keep order and educate students. A very interesting case was recently argued before the Third Circuit Court of Appeals. The Pittsburgh Post-Gazette reports:

What began as a lowbrow parody of a high school principal goes before a federal appeals court this week.

The case of Justin Layshock, who lanced his principal with an unflattering Internet "profile" created on a home computer, has become a battleground pitting Pennsylvania school administrators against groups that defend free-speech rights.

The 3rd U.S. Circuit Court of Appeals in Philadelphia will hear arguments from each side Wednesday.

Mr. Layshock used his grandmother's computer in December 2005 to create a fictitious profile of Hickory High School Principal Eric Trosch. Mr. Layshock, then a high school senior, made fun of the principal's bulk and implied that he smoked marijuana. Mr. Layshock posted the profile on the Internet social site Myspace.com.

Angered, Mr. Trosch and administrators of the Hermitage School District in Mercer County suspended Mr. Layshock from school for 10 days. After that, they placed him in an "alternative" education program that Mr. Layshock considered inferior.

Seems hard to believe that schools could possibly punish students for speech they engage in outside of school, but the Internet has truly changed the nature of speech. The Philadelphia Enquirer has more.