Another Semester Break

I won't be posting during break. I'll resume posting at the start of next semester. Have a nice break!

An interesting piece was posted on the Slate Magazine website a few days ago entitled "How to Keep Brown Alive." As I noted in my last post, the Supreme Court has made it clear that race cannot be used as a factor in assigning students to schools; even if the classification is aimed at creating racial diversity. The Court held that the government could not meet the strict scrutiny test, which it is required to do for race-based classifications. So does this mean that the legacy of Brown v. Board of Education is dead? No says Richard Kahlenberg over at Slate. How about using wealth as a factor in assigning kids to schools? Kahlenberg notes that some 40 school districts are already using plans that assign kids to schools using wealth as a factor. He notes that these policies actually result in very diverse schools . . . even from the stand point of race.

Would such a classification survive Court scrutiny? Possibly. Classifications based upon wealth would be subject to the rational basis test, which as we discussed in class is a far easier hurdle for the government to clear. The goal of having diverse schools would likely be considered a legitimate government interest and using a wealth classification to achieve this goal would likely be deemed reasonably related to the goal. But could this classification still be challenged as being a race-based classification? Possibly. It is likely that white students would claim that this wealth classification is nothing more than a disguise for a race-based classification. Furthermore, these students could probably show that many of these policies were created to get around the recent Supreme Court ban on race-based classifications for assigning students to schools. So both effect and purpose could possibly be shown.

Another Controversial Finish

The United States Supreme Court finished its 2006-2007 term this week with a bang. As I mentioned last week, the Court still had some rather controversial cases left to decided as it entered its last week of session. The court did not disappoint . . . at least when it came to creating a controversy. The week started off with the Court holding that students do not have the right to engage in speech that contradicts a school policy against illegal activity. The policy in question was a school's anti-drug policy. The speech in question was a sign with the words "Bong Hits for Jesus" on it. In a 5-4 decision, the majority of the Court concluded that schools have the right to restrict student speech that advocates illegal behavior. In this case, a majority of the Court concluded that the sign was a pro-drug message, even if the student who created the sign didn't intend it to be. Many legal scholars see this as a narrow ruling, but at least three justices on the Court appear to be willing to give schools significantly more power to restrict student speech.

The Court's final decision, handed down yesterday, was every bit as controversial, if not more. The Court, in another 5-4 decision, struck down school policies that used race as a deciding factor in determining where a student would attend school. At issue was a policy intended to create racial balance in schools that resulted in students being bused across town to achieve this racial balance. This scheme had its origins in the landmark Brown v. Board of Education decision, which said that separate schools for blacks and whites could never be equal. While the Court ruling yesterday doesn't overturn Brown or cases that allow for affirmative action, it seems to severely limit government's ability to create diversity by using race as a factor. The Court basically said that the policy in question was not necessary to serve the states compelling interest. What other means the state could have used to create racial balance in its schools is left unsaid by the majority of the Court. The dissenters, on the other hand, claim the majority ignored past precedent and basically overturned past precedent without expressly doing so. This decision appears to be part of a larger strategy to limit the reach of past precedent that many conservatives believe were incorrectly decided, without actually overruling the precedent.

Interesting times at the United States Supreme Court and surely proof that the judicial appointments made by President Bush two years ago have made an enormous impact on the direction of the Court.

The Final Eight

Entering it's last week of 2006-2007 term, the United States Supreme Court still has eight cases left to decide. And as usual, they are some of the most controversial cases on the docket. Students in my Conversation and Presentation Skills class know that the court is trying to figure out whether a student can be punished for holding up a sign saying "Bong Hits for Jesus" at an event held outside of the school. This case has the potential of redefining how the court deals with the free speech rights of students. But some of the other cases left to decide are equally interesting. For instance, the Court must still determine whether schools can take race into account when assigning students to schools in a given school district. The practice has been used for decades to make sure there is some kind of racial balance in schools. As students in my Constitutional classes know, the issue how race classifications operate under the Equal Protection Clause has been controversial since the adoption of the 14th Amendment to the Constitution. Also still on the undecided list is a case dealing with the death penalty and mentally ill defendants, as well as the ability to bring Establishment Clause challenges, as the Court looks at what kind of "harm" one must show to be a plaintiff in a challenge based upon the Establishment Clause. The issues involved in these cases touch upon some of the most hotly debated issues in America, and many people are anxiously awaiting this last week of Court decisions.

Electing Judges

The New York Times has an interesting piece on a new study looking into the impact of campaign financing on judicial election campaigns. The study found that an average of $244,000 was spent on each judicial campaign. That's the average. You can be sure the campaigns for state supreme courts cost much more. Take Alabama's Supreme Court race for instance. According to the Times, the Alabama contest was the second most expensive in the history of the nation, with over 17,000 radio and televisions being run throughout the state during the campaing. 17,000! Take a look at the article for interesting facts on spending in judicial campaigns.

Symbols Aren't Always Speech

American Constitutional Law students learn that symbols are also considered speech that is protected by the Constitution's First Amendment. But one must be careful when dealing with symbols, as a biker club in California recently found out. For symbols to be speech they must communicate a reasonably understandable message. What does this mean exactly? Well for starters the person wearing the symbol must intend the symbol to express a thought or idea. Second, a reasonable person must be able to at least remotely understand the message being expressed.

A recent case in California, we will call it the California biker case, dealt with a prohibition of motorcycle club insignia and gang colors at something called the Gilroy Garlic Fair. The bikers in question wore a club symbol (pictured above) showing a skull, wings and a top hat; and were forced to leave the fair for violating the fair's aforementioned policy. They sued claiming the club symbol was speech protected by the First Amendment. They lost because not even the members of the biker club could agree on what the symbol meant. The court reasoned that if the bikers themselves didn't know what message was being expressed by wearing the symbol then how could the symbol be speech.

40 Years Ago Today

It was forty years ago today that the United States Supreme Court struck down laws banning blacks and whites from marrying. The now famous Loving v. Virginia case was brought on behalf of an interracial couple who were thrown in jail for violating Virginia law. They were eventually forced to move from the state until the Supreme Court finally stepped in to say that the practice of banning interracial marriages, which was still law in 17 states at the time, violated the Constitution's Equal Protection Clause. The Associated Press has a fascinating short piece on the history of the case. It's worth a read.

Independent Judges

There is a fierce debate currently being waged in the United States over how independent judges should be. As students of common law learn, the common law judge both interprets law and makes law. But there is a clear distinction between the two. When the legislature or constitution speaks to an issue, it the judge's job to interpret what the law or provision means. So what happens when judges, while interpreting law, end up doing so in such a way that actually looks more like lawmaking? In America, there is a movement to limit the ability of judges to interpret law in a manner that is inconsistent with the intent of the drafters of the law or the Constitution. But some "legal heavywieghts" are weighing in on this issue opposing efforts to place constraints on judges. One such advocate of "judicial independence" is retired Supreme Court Justice Sandra Day O'Connor, who recently gave a speech at the University of Tulsa on this issue. O'Connor's comments in the Tulsa World are worth a look.

Separation of Church and State

In our Constitutional Law class we will soon be discussing the religion clauses of the First Amendment. One of the more controversial interpretations of the First Amendment's Establishment Clause is that government and religion should be separate, or as Thomas Jefferson wrote, there should be "a wall separating church and state." The are many arguments in support of this interpretation of the Establishment Clause, but the one that is most convincing to me is that we should not allow government and religion to mix because America is a religiously diverse country and some religions will be given an advantage over others. For instance, if we allow prayer in public school, whose prayer should we allow? Christian? Jewish? Muslim? Hindu? If we simply allow the majority to decide then surely those practicing a minority religion will feel left out.

A nice illustration of this is currently being debated in Indonesia, which is predominately Muslim, but also has majority Christian areas. Many areas within Indonesia base their laws upon the Koran, also known as Sharia law. For instance, in some parts of the country all women, even those who are not Muslim, must abide by the Sharia law dress code for women. In response to this, politicians in a Christian area of the country are proposing basing their laws on the Bible. But is this really the best way for a diverse country to operate? Is it preferable to have a patchwork of relgious based laws across the country? Or is the better solution to simply keep religion and government separate, as Thomas Jefferson proposed at the birth of the United States.

Sleeping Judges

As the Wall Street Journal Law Blog recently pointed out, the media in America has said a lot lately about the election of judges and how much judges are paid, but they missed an interesting story that also deals with the quality of the judiciary--sleeping judges. That's right, apparently there is a problem in countries across the globe concerning judges who simply cannot stay awake while on the bench. The WSJ Law Blog writes:

Ronald Grunstein, a professor in Sydney, Australia, specializing in human sleep physiology, investigated 15 cases of “judicial sleepiness” around the world. His conclusion: Judges should be more actively monitored for falling asleep on the bench, a problem that could have consequences in the courtroom. The study is included in the current issue of Sleep, the official journal of the Associated Professional Sleep Societies. Here’s the 26-page study

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Supreme Court Allows High Speed Car Chases

A few weeks ago the United States Supreme Court handed down a very interesting ruling concerning high-speed car chases. The question before the Court was whether a person injured during a high-speed car chase with police could sue the police for his injury. The case in question dealt with an individual who was trying to get away from the police. After several minutes of a high-speed chase (captured on this fascinating video), police decided to end the chase by nudging the fleeing suspect's car, causing the suspect to lose control and crash. The fleeing suspect was severely injured and sued police. The Court found the suspect could not sue police for his injuries. But what really makes this case interesting is 1) the video and 2) Justice John Paul Stevens' dissenting opinion where he criticizes the Court for engaging fact finding. Students of Common Law Legal System will remember that appellate courts in the United States generally don't engage in fact finding. That is job of juries and trial court judges. But in this case Justice Antonin Scalia, who wrote the majority opinion for the Court, used evidence that was not used by lower courts (the video) in making his decision. Stevens said that the Supreme Court should not be engaged in this kind of fact finding. His colleagues (and I would argue the Constitution), however, did not agree. Stevens was the lone dissenter in this case.

Views on Guantanamo

Last week in class I made the off-hand remark that most Americans don't care about what is happening at Guantanamo Bay. My opinion was based more upon anecdote than fact. However polling data does appear to support my claim. A 2005 poll found that while Americans were beginning to question the war in Iraq, they still firmly supported the government's handling of the detainees at Guantanamo. While the rest of the world considered the American policy to border on lawlessness, seven-out-of-ten adults in America believed the prisoners there were being treated "better than they deserve" (36%) or "about right" (34%). However, a year later polls found that 70% of American believed that the detainees should not be held indefinitely without being charged with some kind of crime.

Why the reversal? First, the second poll was taken just after the U.S. Supreme Court had issued it's opinion in Hamdan v. Rumsfeld saying that the U.S. must provide detainees with some kind of hearing to challenge their detention. Arguably, before this case caught the media's attention most Americans had no idea these detainees had never been given the chance to challenge their detention. Second, Americans are becoming increasingly suspect of many things the Bush Administration is doing as part of their "War on Terror." With that said, it's striking that no Presidential candidate from either party dares to mention Guantanamo. That's likely because most Americans still believe that Guantanamo houses the "worst of the worst" terrorists, as we have been told repeatedly by the President. As an award winning radio story nicely illustrated recently, the idea that the "worst of the worst" are at Guantanamo is just part of the long line of untruths spread by the Administration concerning it's war on terror policy.

Withdrawing the War Power

In our Constitutional Law classes we have been discussing the powers possessed by each branch of the American government. As we learned, Article I of the Constitution gives Congress the power to declare war. While the last actual declaration of war was just after the attack of Pearl Harbor, Congress has on many occasions passed resolutions giving the President the power to engage in hostilities on foreign soil. Most recently Congress did this with Iraq. While never specifically declaring war against Iraq, Congress did pass a resolution allowing the President to send troops there should he see fit. As we know, he saw fit. Currently the Democrat-controlled Congress and Republican President are at odds over when, or whether, to bring the troops back from Iraq. Congress has tried to pass funding bills that also include timetables for troop withdrawals. The President has resisted this effort by vetoing such bills.

Now comes an interesting proposal from someone who herself wishes to be President one day. Sen. Hillary Clinton has proposed that Congress withdraw the resolution it passed several years ago giving the President the authority to attack Iraq. The question that legal scholars are surely asking themselves at the moment is, can they do that? Once Congress gives the President the power to make war, can Congress withdraw that power? My hunch is no. But it does raise an interesting question.

Bush, the Commander Guy

This week we will be discussing the President's power of Commander-in-Chief in our Constitutional Law classes, although it should have been already clear after our discussion of Congress's war power that the President is indeed the commander of the armed forces. Apparently, President Bush feels that Commander-in-Chief is too formal a title for an "average Joe" like him.

“The question is, ‘Who ought to make that decision, the Congress or the commanders?,’’ Mr. Bush said. “As you know, my position is clear – I’m the commander guy.”

That's right, the Constitution might say that Bush is the Commander-in-Chief, but in his mind he is simply "the commander guy."

Civil Liberties in an Age of Terror

Spiegel Online International (Spiegel's English website) has an excellent, albeit long, piece on the delicate balancing act currently taking place between the war on terror and civil liberties. I suggest taking a look at it because it discusses many issues with which German law students are familiar. Sometimes reading complicated foreign language text is easier if the reader is already familiar with the topic. Furthermore, while we don't talk specifically in the FFA about some of the issues raised in the text, there are general principles with which all FFA students will recognize, especially those concerning Constitutional Law. For instance:

In addition, in any constitutional democracy government measures against terrorism and suspects of terrorism ought to be subject to review by an independent and neutral institution just as in non-exceptional cases. When civil liberties are concerned, the appropriate institution is the judiciary. Governments tend to invoke the grand values when it comes to fighting terrorism, and they paint gloomy pictures in order to justify extraordinary means. Courts operate from a certain distance, do not have to look to the next election, and can employ a more sober view. There is no good reason to exempt anti-terror measures from judicial scrutiny. In delicate cases in-camera procedures are better than no judicial control at all.

Appeals Court: Fight over Bible Display Moot

The Associated Press reported last week that the 5th Circuit Court of Appeals ruled that a dispute over the placement of monument depicting an individual holding the Bible on public property was moot. In a few weeks American Constitutional Law students will be introduced to the concept of mootness. The short story on mootness is the Court no longer felt there was an active dispute that needed a remedy. Those students in my Conversation and Presentation Skills for Lawyers are by now all too familiar with why religious displays on government property cause concern. Students in both classes may want to take a quick look at the linked article above. It's a good introduction to both mootness and the display of religious symbols on public property.

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.