Langauge Unbecoming of a Judge?

Readers of recent Supreme Court opinions in both the United Kingdom and United States might be surprised by some of the language used by Justices to describe the arguments set forth by their fellow Justices. In England, it has apparently become so bad that the President of the UK Supreme Court has now publicly called for his fellow Justices to show restraint when writing their opinions. As the Telegraph reports:

The president of the Supreme Court has chastised judges, saying that while it is "fun" to throw insults at each other they are damaging the reputation of the court. Lord Neuberger of Abbotsbury urged lawmakers to stop their “abuse” and “hyperbolic criticism” of one another in their judgements because they risk undermining the authority of the judicial process.

This act of "throwing insults" is nothing new at the U.S. Supreme Court. Justice Antonin Scalia has been doing it for almost thirty years calling the views of his fellow Justices "silly" "absurd" and "feeble."

Can Muslims Be Banned From Entering the United States?

Donald Trump is no stranger to controversy. In fact, he craves it. His most recently controversial statement, however, has raised an interesting constitutional question: Would it be constitutional to exclude all Muslims from entering the United States? (for a primer on this issue in German see "Trump für komplettes Muslim-Einreiseverbot in die USA"). Interestingly, there is a split of opinion among American academics regarding this question, and one of the reasons is a case that was discussed here early this month. For a taste of the some of the conflicting views regarding this question see here, here and here.

Judicial Review of Administrative Acts

Students in my American Constitutional Law course were recently exposed to the complex area of American Administrative Law concerning when and what kind of administrative acts the U.S. federal courts may review. A few weeks late, but nevertheless relatively timely, Forbes has published a short article about a case heading to the U.S. Supreme Court concerning an agency interpretation of federal law. The case concerns a recent Obama administrative rule broadening the definition of "waters of the United States." The term is found in the Clean Water Act, which gives the government the authority to prohibit landowners from building on certain land because of environmental concerns. According to Forbes:

The court’s decision to hear U.S. Army Corps of Engineers v. Hawkes Co. follows the Obama administration’s enactment of a new Clean Water Rule that puts millions of additional acres within the definition of “Waters of the U.S.” covered by the Clean Water Act. If the Supreme Court rules for the government in Hawkes, landowners will be left with a difficult choice if regulators decide their property contains wetlands: They can abandon all commercial use of it, apply for a permit with a high chance of being rejected, or risk ruinous fines and even jail if they modify the land.

Ultimately, this case boils down to the definition of "final agency action." As we learned in class, federal courts generally refrain from reviewing agency actions unless they are considered to be final. This short article is certainly worth a read. 

The Reach of Constitutional Rights

Prof. Noah Feldman recently started his Bloomberg View column with the question "can an American detained and allegedly tortured by the FBI at black sites outside the U.S. sue for damages? The answer: NO. As we discussed in my American Constitutional Law course, the rights found in the U.S. constitution only protect people when they are inside the boundaries of the country (with a few exceptions). Feldman explains why a recent court decision dealing with the question he poses was wrongly decided. It's worth a read. So is the blog post by Lyle Denniston at the blog Constitution Daily.

Disappearing Precedent

The Marshall Project recently ran a very informative news piece on its website about unpublished opinions. As students in my courses learn, not all court decisions turn into precedent. Of course, only the highest courts create binding precedent, and even their decisions can only be precedent if they are published. A court may choose to "unpublish" its opinion and in so doing the opinion will not be treated by future courts as precedent. At least most of the times. Those interested in understanding this oddity of American common law should read this short and informative article.

The Shadow of Korematsu

With all the overheated rhetoric coming from some Republican presidential candidates about how Muslims in America should be treated, one cannot help but think back to some of the darker episodes of American history where fear overran reason. Perhaps no other episode sticks out more than the internment of Japanese-Americans in the aftermath of the attacks on Pearl Harbor. While the internment was bad enough, the fact that the Supreme Court went along with such a policy is even more shameful, at least in retrospect.

Writing for the Court in the (in)famous Korematsu case, Justice Black said:

"It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can,"

For Black and the majority, the idea that there could be Japanese spies circulating among the populace in the immediate aftermath of a Japanese attack was sufficient justification to round up over 120,000 people and place them into camps. The case is still good law today, never having been overturned by the U.S. Supreme Court, and has actually been cited by a few American politicians as precedent for the idea of rounding up recent refugees from Syria. 

Students who are interested in learning more about the Korematsu case and how it relates to Syrian refugees are encouraged to check out a recent post over at the Constitutional Daily Blog as well as a recent article by Matt Ford of the Atlantic.

On sixteen occasions the office of the Vice President of the United States has been left vacant due to either : 1) resignation, 2) death or 3) succession to the presidency (because the President had died in office). Prior to the passage of the 25th Amendment, the office simply remained vacant until the next election. As the wikipedia page of the 25h Amendment notes:

With President John F. Kennedy’s assassination, the need for a clear way to determine presidential succession, especially with the new reality of the Cold War and its frightening technologies,^[14] forced Congress into action.^[14] The new President, Lyndon B. Johnson, had once suffered a heart attack,^[15] and the next two people in line for the presidency were Speaker of the House John McCormack,^[16] who was 71 years old,^[14] and Senate President pro tempore Carl Hayden,^[16] who was 86 years old.

In short, the situation was ripe for one of those rare moments when the country was ready and willing to amend its constitution. A mere six years after being added to the constitution, the amendment was tested with resignation of Vice President Spiro Agnew. To take his place President Richard Nixon selected Rep. Gerald Ford to be the new VP. Under the new amendment, his appointment needed to be confirmed by a majority of both houses of Congress. It was.

And just in time. An informative post on the Constitution Daily blog explains how another aspect of the 25th Amendment, the temporary replacement of the President, was also in play as the Watergate scandal was threatening the Nixon presidency.

Presidential Pardons

As is usually the case in late November, the press (even the German press) was filled with stories about the President exercising his pardon power. Of course, the pardon in this case was for a turkey, something that over the past several decades has become a tradition in the United States marking the beginning of the Thanksgiving holiday weekend. However, students in my constitutional law course know (or at least they should) that the president's power to pardon individuals is real and important. The Economist has a nice, short "explainer" regarding how this power works. Well worth the read.

The First American Constitution

At some point or another most of my students have heard me say that the constitution we study today in American Constitutional Law is actually America's second constitution. The first one, the Article of Confederation, were an abysmal failure, leading to its total repeal and replacement with what we now call the Constitution of the United States of America. So why did this first one fail? As usual, the National Constitutional Center has this question well covered with a post entitled "10 reasons why America's first constitution failed." A nice a short read that is worth your time. Check it out!

The Importance of Dissenting Opinions

Students in all of my courses are at one point or another confronted with dissenting opinions found in appellate court cases. While the dissenting opinion is a somewhat new feature of German constitutional jurisprudence, it has a long and storied history in American constitutional law. A recent short article in the magazine Reason underscores the importance of dissents.

Youngstown Steel Case

Last night in my Constitutional Law course we discussed the landmark Youngstown Sheet & Tube case. The National Constitution Center has a wonderful summary of the case and the various opinions filed in it. Students wishing to obtain a better understanding of the case should take a look at the post. There is also a link to a video shown on C-SPAN about the case.

The Origins of Judicial Review in the United States

Students of my American Constitutional law course, and to a lesser extent all my other courses, are aware that the U.S. Supreme Court is basically a constitutional court. However, a careful reading of Article Three of the U.S. Constitution shows that in fact the Supreme Court was not expressly given the power to review whether actions taken by the other two branches of government violate the constitution. As it turns out, the Court gave itself this power in perhaps the most important decision ever issued by the Court: Marbury v. Madison. C-Span has a video of a discussion concerning the history of this case and its impact. For all you American constitutional history junkies out there, this video is worth checking out.

The Role of Judge and Jury

Other than the use of case law, there is perhaps nothing that distinguishes the common law system from the civil law system more than the roles played by judge and jury in a trial. This is particularly so when it comes sentencing (criminal cases) and remedies (civil cases). The jury, as we learn in class, has the role of "finding the facts." In other words, they hear the stories told by the parties and then try to determine what "really" happened. In civil cases it is also up to the jury to determine the appropriate remedy upon a finding that the defendant was liable. In criminal cases, on the other hand, once the jury has found a defendant guilty, their job is done. The sentencing of the convicted rests solely with the judge. With one minor exception in the United States: Capital Punishment. In class, I tend to over generalize this a bit in order to keep it simple. In reality, the Supreme Court's decision in Ring v. Arizona does not explicitly place the decision to execute the convicted solely in the hands of the jury. However, a case being heard by the Court this session might change that.

Term Limits for Florida Judges?

A recent Miami Herald article about a movement to amend the Florida Constitution to allow for judicial term limits serves as a good reminder that each state controls the manner in which their state court judges are selected and how long each may serve. The article explains that:

In Florida, justices and appeals court judges serve six-year terms. They aren’t reelected as trial court judges are; rather, they go before voters in an up-or-down vote as to whether they should stay in office.

The merit retention system was added to Florida’s Constitution by voters in the 1970s, but no justice has been removed from office because of it. From 1980 to 2014, 42 Supreme Court justices have faced a merit retention vote. All received a majority, allowing them to stay in office.

Read

This illustrates how some states have a mixture of the selection processes we discussed in class. Here we see a system that has competitive elections for its lower court judges while uses the retention system for its higher court judges. Those wondering why some would want to limit the term of higher court judges need look no further than this quote from the article:

Rep. John Wood, R-Winter Haven, said term limits for the state’s seven justices and 64 appellate judges would ensure “diversity of legal philosophy,” “enhance the proper role of the judiciary,” and “create a true balance of power” with the Legislature and the governor, both already subject to term limits.

Read more here: http://www.miamiherald.com/news/politics-government

It seems relatively clear that advocates of this changes believe that judges in Florida have become too entrenched and too powerful.

Death Penalty Podcast

Yesterday I wrote about whether the death penalty is heading for extinction in the United States. Today I'd like to draw your attention to a podcast found on the National Constitution Center's website featuring answers to questions like:

Does the Cruel and Unusual Punishment Clause prohibit the death penalty? If not, are some modern methods of execution “barbaric” enough to violate the Clause? What standard should courts use to determine if a punishment is “cruel and unusual”?

Check it out and see if you can follow along with the discussion!

The End of the Death Penalty in America?

Recent statements by Justice Antonin Scalia have created somewhat of a firestorm among members of the legal media. In a recent speech at the University of Minnesota the Supreme Court Justice remarked that he would not be surprised if a majority of the Court concluded that the death penalty violated the U.S. Constitution. Students interested in this issue should take a quick look at (as well as listen to) a story on the Minnesota Public Radio website.

Choosing the Author of Supreme Court Opinion

Both the Washington Post and New York Times recently ran articles about how Chief Justice Roberts distributes opinion drafting assignments among the nine Justices of the United States Supreme Court. Both articles are worth reading for anyone interested in the inner workings of the Court.

The Lochner Case

Students attending my American Constitutional Law class are now somewhat familiar with the debate that has raged for well over a century concerning the meaning of the Commerce Clause, found in Article One, Section Eight of the U.S. Constitution. As students now know, a central aspect of this debate involves how one views the role government should play in regulating business. In addition to reading the Commerce Clause narrowly, advocates of a more laissez faire approach also believe that the concept of "liberty" found in the Constitution includes the right to contract. Under this right, the government may not interfere with a contract between employer and employee. During the so-called Lochner Era, the Court used this reasoning to strike down several federal and state laws that sought to regulate the employer/employee relationship. While Lochner was eventually overturned by the Court, its legacy lives on. Students interested in understanding the role Lochner plays in modern American constitutional jurisprudence might want to check this discussion on C-Span. The Constitutional Center also has a nice summary of the case.

Donald Trump and the UK Supreme Court

How on earth could I resist posting a link to an article that mentions Donald Trump and the UK Supreme Court in the same sentence? For students in my JTMCL and Common Law Legal Systems courses (Münster), this article also reinforces the idea that the UK Supreme Court is the court of last resort (with some minor exceptions) for court systems found in England/Wales, Northern Ireland and in this case Scotland.

Judicial Elections

Today is election day in the United States, and while there are no federal elections taking place, several states have candidates as well as issues on their ballots. As students in most of my courses become aware, many states in the United States select their judges via an open, competitive elections. The wisdom of such elections is always a matter of debate, and the recent campaign for the Pennsylvania Supreme Court has shined the light once again on some of the more troubling aspects of judicial elections: the influence of campaign contributions and outside spending by issue advocacy groups. In a piece entitled "Mystery donor group fuels attack ads in PA Supreme Court race" Eric Holmberg reports on how these advocacy groups are attempting to influence voters while at the same time hiding their identity. Reports like these have led some to question whether it is time to do away with judicial elections in the Keystone State.