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.