Finding a Rational Basis to Prohibit Gay Marriage

The struggle of gays and lesbians to obtain full marriage rights is now a legal battle being fought in the courts. The questions facing the court are numerous and all grounded in the U.S. Constitution. For instance, the U.S. Supreme Court has recognized an implied constitutional right to marry. So does this also apply to gays and lesbians. So far the courts have said no. Does prohibiting gays and lesbians from marrying violate the Equal Protection Clause? Well, it depends how you analyze it. Under current Supreme Court precedent, the question must be analyzed using the Rational Basis Test. Under this test the plaintiff must prove that the government does not have a legitimate interest in passing the law and/or the means used to achieve the government interest are not rationally related to the interest itself. The primary argument used by opponents of gay marriage is that the government has a legitimate interest in encourages only those partnerships where procreation is possible. But as this article in Slate magazine points out, perhaps prohibiting gays from marrying is not rationally related to this interest.

When Will They Learn?

Hardly month goes by without the news reporting some case of a person being arrested and charged with a crime for swearing in public. Time and time again the courts throw these cases out on the basis of the First Amendment's free speech protection. It makes me wonder whether prosecutors have ever read the Constitution. This recent case out of Arizona is a nice example.

Judicial Review Under Review

Dahlia Lithwick of Slate Magazine recently asked whether legal arguments over President Obama's health care reform should make us question the role of the courts in our system of government. The article is really about the politicization of America's "independent" judiciary, and provides one view how American courts are being impacted by outside influences, and whether this development (if in fact it is something new) should make us reconsider judicial review.

Can Private Parties Enforce Federal Regulations?

As with most questions in American Administrative Law, the answer is it depends. It depends on what the enabling statute (the statute either creating the agency or the agency's task) says. The law blog JURIST has a good example of a statute that allows private parties to enforce regulations and an instance where a federal judge found that environmental groups had standing to sue to enforce the regulations:

A federal judge on Tuesday permitted two environmental groups to sue a Texas refinery owned by ExxonMobil Corp. [corporate website] for failing to enforce federal environmental standards. The Sierra Club and Environment Texas [advocacy websites] filed the lawsuit [Reuters report] in December in the US District Court for the Southern District of Texas [official website] against ExxonMobil's Baytown, Texas, refinery and the adjacent chemical plant for allegedly releasing over 8 million pounds of pollutants beyond the levels permitted under the CAA in the last five years. The Clean Air Act (CAA) [materials] contains a provision permitting private individuals to seek enforcement of federal pollution laws when the US Environmental Protection Agency (EPA) [official website] fails to do so.

you can read the rest here.

Senate Vote Thresholds

Students in my U.S. Constitutional Law course were recently perplexed by the number of different vote thresholds the Senate needs to accomplish various tasks. One student bravely asked if I would put together a list of the various thresholds. Sure, why not.

Votes need to conduct business (quorum) - a majority of seats currently filled by elected, living members.

Votes to pass a bill - a majority of members present for the vote.

Votes needed to end a filibuster (Cloture Vote) - 3/5 of the full Senate, i.e. of seats not vacant. Remember, the filibuster only exists in the Senate.

Votes needed to confirm a Presidential Appointee - majority of members present for the vote. Remember, only the Senate as confirmation power.

Votes needed to ratify a treaty - 2/3 of Senators present. Remember, only the Senate has ratification power.

Votes needed to convict and remove - 2/3 of Senators present. Remember, the House, by a simple majority, begins this process by impeaching the person.

Votes needed to override a veto - 2/3 of Senators present (House of Representatives are also needed).

Votes needed to propose an Amendment to the Constitution - 2/3 of member present. (House must also vote).

How Important Are Oral Arguments

Students in my Conversation and Presentation Skills for Lawyers course just finished a moot court exercise. For those of you not familiar with mooting, the exercise is essentially modeled on an appellate court proceeding. As I point out to students, these oral arguments in real life give appellate judges the opportunity to ask questions they may have on points of law, but more specifically it gives judges the opportunity to think about how their decision might impact future cases. As I like to point out to students, many of the questions asked by Supreme Court Justices during oral arguments are hypothetical in nature for the very reason that they are struggling with trying to determine how a particular rule they develop could be used in the future. But how important are these oral arguments? After all, both parties submit detailed legal briefs outlining their legal arguments. One sitting Supreme Court Justice, Clarence Thomas, has famously not asked a question during oral arguments for several years now. His position, apparently, is that these oral arguments aren't worth very much. Now it appears that at least one other Justice feels the same way.

Our Aging Judiciary

Is giving judges lifetime appointments a good idea? Not really according to this recent piece in Slate Magazine.

Under the U.S. Supreme Court: The president makes war in Libya

After pressure from England and France, President Barack Obama finally agreed to send U.S. war planes into Libya. But did he have the power to do so without permission from Congress? Back in March, shortly after the first U.S. planes were seen over Libya, United Press International ran an informative piece on this question. Students in my U.S. Constitutional Law course may want to check this short piece out.

Jury Selection

The Orlando Sentinel has a great article and video about the jury selection in a Florida case that has received nation-wide attention. The piece begins by stating basically what I have been telling students about jury selection in America, at least in high profile cases:

Experts say trials are won and lost in jury selection.

This is why an entire jury-consulting industry is devoted to reading the body language of would-be jurors, profiling them based on personal characteristics and learning as much as possible about these individuals to sift out the "dangerous jurors."

The rest of the story and the video are worth your time if you are interested in getting a better look at jury selection in high profile cases.

The Rise of the States

To fully understand the constitutional argument surrounding President Obama's attempt to provide health care to all Americans, one must also understand how federalism works in the United States. The struggle for power between the states and the federal government has been a part of the political debate in the U.S. since its founding. And even today the States are looking for ways to increase their power, including this proposal to amend the U.S. Constitution in a way that would allow the States to veto federal law.

Biden Called to Serve

No one is too important to serve on a jury in the United States. At least that was the message that Vice-President tried send this week when he appeared in a Delaware courthouse after being summoned to serve on a jury. The Los Angeles Times has a nice short piece on what happened when the Veep showed up as well as a nice little anecdote about what happened last year when the President of the United States was summoned to serve on a jury in Chicago.

More on Racial Preferences

Students in my Race and Equality in America seminar recently engaged in a discussion concerning the controversial topic of Affirmative Action. And wouldn't you know it, a day later Affirmative Action is in the news with the U.S. Court of Appeals' ruling on the University of Texas admission policy, which takes race into consideration as a factor for admission. The Statesman newspaper has more.

Courts of Appeals in the States

So here is a quick quiz. How many states do NOT have a court appeals in their judicial system?

Students in my introduction to common law courses are by now familiar with the basic structure of court systems in the United States: trial court, appeals court, supreme court. As I mentioned, many states deviate from this basic structure in one way or another. For instance, the highest court in New York is not called Supreme Court but Court of Appeals, while one of the lower courts is called Supreme Court. A bit confusing. Wikipedia has collected a few more differences that exist between state court systems.

But a more substantial deviation from this basic structure is the absence of a Court of Appeals. In these states one finds a trial court and a Supreme Court with nothing in between. In some of these states losers in the trial court have the right to have their appeal heard by the Supreme Court!

The Las Vegas Sun recently published an editorial urging the Nevada Legislature to create a Court of Appeals in Nevada. Because Nevada is a state where one has an appeal as of right to the Supreme Court, the system is inefficient with a bottleneck of cases at the top of the pyramid, at least so argues the Sun.

So back to my question. How many states do not have an intermediate court? The answer: 10! Wow. More on the various differences between the state systems regarding appeals can be found here.

A Split in the Courts

A nice little review of students in my law classes. The Dallas Morning News has a nice short article today emphasizing the how precedent works in a country like the United States, which has multiple judicial jurisdictions. The article concerns how courts in various parts of the country have dealt with the issue of whether police need a search warrant to search a cellphone. The take-away lines from the article:

A recent California Supreme Court decision says police do not need search warrants to examine the cellphones of those under arrest. But local judges and a deputy chief for the Dallas Police Department say officers should obtain warrants before reading the contents of cellphones. . . . "The safer way would be to get a warrant until the [Texas] Court of Criminal Appeals rules or the [U.S.] Supreme Court rules," said Adams, presiding judge for the felony courts.

Indeed. A case in California has no binding effect on courts in Texas. Only the U.S. Supreme and top court in Texas, in this case the criminal court of appeals, can create binding precedent that lower Texas courts must follow.

The House Over Time

Just to follow-up on yesterday's post. The Washington Post has a really interesting interactive map showing how the composition of the House of Representatives has changed over the past 100 years. Choose a year. Then move your cursor over a given state. It will show you how many representatives that state had during the period you have chosen. It will also show you how many people each member of the House represented in a given period. Looks like the average number of people per member of Congress was about 290,000 in 1910. Today it is over 700,000 people per representative!

Census Numbers Are In

In each of my courses, at some point or another, we touch upon how the membership of House of Representative is apportioned, and reapportioned every ten years. As students in my courses this semester have heard me say a number of times, this year reapportionment will once again take place because the United States just completed its census. Well, the numbers are in. Politico has more about which states were the winners and which the losers when it comes to membership in the House.

Tweeting from the Jury Box

Reuters recently had an interesting article on the impact social media is having on juries. The article begins:

The explosion of blogging, tweeting and other online diversions has reached into U.S. jury boxes, raising serious questions about juror impartiality and the ability of judges to control courtrooms.

The article not only explains how this new media is threatening fairness in jury trials, but also provides numerous examples of instances where a judge ordered a NEW TRIAL because of a juror's online conduct during the trial.

Advise and Obstruct

The New York Times recently ran an editorial with the same caption as my post here, which is clearly a play on the "advise and consent" language in the U.S. Constitution. As students will recall, while the President has the power to nominate federal judges, he must also obtain the consent of the U.S. Senate. As I mentioned in class, this process has become increasingly political to the point where the federal judiciary's ability to efficiently function is being threatened. Or at least so argues the New York Times.

A very rare event

As I have mentioned in class, it is quite rare for a judge to be removed via the impeachment process. So yesterday's vote in the U.S. Senate wad rather historic.


The US House of Representatives [official website] voted unanimously [JURIST report] in March to impeach Porteous. After an investigation [report text, PDF] by a special committee, the Judicial Conference found "substantial evidence" that Porteous had signed false financial disclosure forms, falsified statements in a personal bankruptcy proceeding, made false representations to secure a bank loan and violated criminal laws [text] and ethical rules by soliciting and receiving "cash and other things of value" from lawyers in a bench trial over which he was presiding. Porteous' decision in that case, In re Liljeberg enters v. Lifemark Hospitals, was later partially reversed [opinion text] by the Fifth Circuit, which earlier this year reprimanded Porteous [text, PDF]. A House committee began investigating Porteous [JURIST report] in 2008.'>Senate votes to remove federal judge from bench

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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.