The Faculty Lounge

Five Chiefs

Earlier this month Little, Brown and Company published Five Chiefs, a memoir penned by former Associate Supreme Court Justice John Paul Stevens.

From the publisher's website:

In Five Chiefs, Justice Stevens captures the inner workings of the Supreme Court via his personal experiences with the five Chief Justices -- Fred Vinson, Earl Warren, Warren Burger, William Rehnquist, and John Roberts -- that he interacted with.  He reminisces of being a law clerk during Vinson's tenure; a practicing lawyer for Warren; a circuit judge and junior justice for Burger; a contemporary colleague of Rehnquist; and a colleague of current Chief Justice John Roberts.  Along the way, he will discuss his views of some the most significant cases that have been decided by the Court from Vinson, who became Chief Justice in 1946 when Truman was President, to Roberts, who became Chief Justice in 2005.

You'll find reviews here, here, here, here, here, here, and here.  And you can listen to NPR's interview with the author here.

John Paul Stevens Interview

For that small cohort of readers who are a) interested in an interview with John Paul Stevens and b) haven't heard him interviewed on Fresh Air by the incomparable Terry Gross...this is your lucky day!  The interview is here.

Article III Tenure for Bankruptcy Judges and the Prestige of Office

Many thanks to the Faculty Lounge for having me guest blog this month. 

In late June, the SCOTUS handed down Stern v. Marshall, its most recent decision to touch on Article III, legislative courts and the increasingly complicated world of bankruptcy adjudication. Congress could greatly simplify this area by just giving bankruptcy judges Article III tenure. Many of the constitutional complications would simply disappear (well, except perhaps that pesky Appointments Clause issue) and bankruptcy could be streamlined. So why not give bankruptcy judges Article III tenure? We could even make the judges PAS appointees.

The last time that was seriously tried in Congress, the proposal was killed by the political opposition. Who were the chief opponents of Article III tenure for bankruptcy judges? It wasn't Congress, but the Article III judiciary itself. 

One of the arguments offered against tenure was that so enlarging the Article III judiciary would diminish the prestige of individual membership in the Club. That diminished prestige would, like flagging judicial compensation, make it more difficult to attract the best legal talent to the federal bench in the future. 

Assuming, arguendo, we ought to pursue a certain level of judicial prestige as a recruitment incentive, is minimizing the growth in the size of the judiciary the best way to do it and what is the background level of prestige that ought to be maintained?

Prestige (ill defined in the marketing literature) seems to me to be a subjective reaction elicited from others in response to the perceived status of a position, product, etc., that one usually associates with being elite (e.g. high quality and possibly scarce in supply). That suggests we need to know who the relevant "prestige" community intended to have this reaction is. If the goal is to assure effective recruitment of well-qualified candidates to be federal judges, then presumably the target market should be peers of federal judges who are talented enough to do the job. 

But who is that relevant community? Partners at (especially large) law firms, federal legislators, officers in the executive branch, state judges, law professors, the practicing bar generally, the legal press and media that will transmit the message to these groups? Those groups have grown significantly over time. What year should form the baseline ratio of judges to lawyers that maintains the requisite prestige? 

One could always aim to increase federal judicial prestige by increasing the number of lawyers to judges. That may increase the prestige component of federal judicial "compensation."

But if we were to eliminate the initial stipulation that prestige ought to be something we pursue, would it just be better to compensate judges with other perks of office, e.g. better compensation (which I suppose might in turn have some positive effect on prestige)? Do we really want to encourage recruitment of judges who seek the position, in not insignificant part according to the prestige rationale, for the fawning of others? 

Congress And The Politics Of Criminal Law: Sometimes It's Hard Not To Love Justice Scalia

Broad stroke categorization of justices is always dangerous.  As many people (including the Justice himself) have noted, Antonin Scalia can't be pigeonholed when it comes to criminal law.    Here is Scalia, dissenting yesterday, in Sykes v. United States:

We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases,so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nitty-gritty. In the field of criminal law, at least, it is time to call a halt.

 

Law Prof Seeks Seat on Supreme Court

Update (January 28):  Professor Onwuachi-Willig has made the list of nine finalists (for three slots).  Story here.

Iowa law prof Angela Onwuachi-Willig (pictured), together with five dozen other state citizens, have applied to fill the three vacancies on the Iowa Supreme Court.  Story here.

Chief Justice John Roberts

Chief Justice John Roberts is the "cover story" in the current issue of Fortune magazine (1-17-11).  Here's a link to an online version of the article.

Catching Up with Michael McConnell

The Deseret News recently printed this story on former law professor and former federal appellate judge Michael McConnell (now directing Stanford's Constitutional Law Center), including a few paragraphs devoted to McConnell's first encounter with a certain law review editor who would one day occupy the White House.

In reading Professor McConnell's bio at the Stanford website, I note this sentence:  "He is the only full-time professor of law in the nation who has previously served as a federal judge."  That's quite an interesting piece of trivia (and, I assume, a claim that excludes law deans [such as Duke's David Levi, a former federal district judge]).

 

Time's Top Ten

 Marking the 10th anniversary of Bush v. Gore, Time Magazine ranked the "Top Ten Landmark Supreme Court Cases:"

• Brown v. Board of Education
• Roe v. Wade
• Miranda v. Arizona
• Marbury v. Madison
• United States v. Nixon
• Loving v. Virginia
• District of Columbia v. Heller
• Citizens United v. Federal Election Commission
• Plessy v. Ferguson
• Korematsu v. United States

It's hard to hold back once you start thinking about some alternatives, so I'll just add two: 

The Civil Rights Cases (1883), holding that  Congress lacked authority under the enforcement provisions of the Fourteenth Amendment to prohibit discrimination by private individuals, as opposed to state actors.

Washington v. Davis (1976), requiring evidence of intentional racial discrimination in an equal protection challenge, as opposed to evidence of disparate impact.

Neither of these cases had the cultural impact of, say, Brown or Loving, but they certainly qualify as "landmarks" for establishing two defining principles that shape (and constrain) the Court's entire equal protection jurisprudence. 

Others notable omissions? 

House Approves Ban On Animal Cruelty Videos

The House approved HR 5566 on Monday, the "Animal Crush Videos Act of 2010," in an effort to revive a federal ban on animal cruelty videos.  In US v. Stevens, the Supreme Court held that the crush video statute enacted in 1999 was unconstituitonally overboard under the First Amendment, and ever since then, Congress has been trying to hammer out a narrower alternative.

Would the proposed law survive a constitutional challenge?  Relevant links here.

-Kathleen Bergin

Interview with Justice Stevens

Former United States Supreme Court Justice John Paul Stevens is in Houston this week to speak at a sold-out public event.  His pre-event interview with Houston Chronicle reporter Mike Tolson is available here.  Among his many interesting remarks are his comments on diversity at the high court, including:  

Diversity is always a positive value in a multi-member, decision-making body. But unfortunately it's only nine seats, and you can't represent every area of the country or every point of view you would like to. Personally, I would like to see more Midwesterners or Westerners and not as many from the Ivy League schools. But that does not mean any one of them is not fully qualified. It's a problem that there are only so many seats available, and each time (presidential administrations) have made excellent suggestions right along, but they have not tended to diversify the court.

 

Justice Stevens On Memorials, Mosques And Monuments

Justice John Paul Stevens delivered a talk yesterday at the National Japanese American Memorial Foundation 10th Anniversary Gala Celebration.  His comments are a call to stop judging entire groups - like, say, Muslims - based on the acts of a few people.  Read the complete text of his remarks here .

H/T Dahlia Lithwick

Justice Stevens is the boy on the left in this image.  He is captured playing  with friends in the Stevens Hotel - then owned by his dad and now operated as the Hilton Chicago Hotel.

Revisiting Violent Video Games

 
About 10 years ago, I wrote an article about “Marketing and Policy Considerations for Violent Video Games,” and the issue has recently reached the U.S. Supreme Court. At the time of my article, the Columbine shootings had just happened, and people were struggling to figure out why and how such a horrible thing could happen. Through my research, I quickly learned that the little white ball of yesteryear had been replaced with realistic images of graphic violence, and legislation to curb minors’ access was slow to follow for a variety of reasons. The issue remains as charged today as it was a decade ago. How should the High Court rule?

The Skilling Saga

Those who continue to follow Jeff Skilling's path down the appellate road may find interesting this story from the local newspaper.  A panel of the Fifth Circuit will hear oral arguments in his case today in Houston (interesting court announcement here).  I tried to find the panel composition, with no luck.  A digital recording of the arguments may be available later today (click here if interested).

Scorpions!

Harvard law professor Noah Feldman has written a new book entitled Scorpions:  The Battles and Triumphs of FDR's Great Supreme Court Justices.   Here's a description of the book (which focuses on Robert Jackson, Hugo Black, William O. Douglas, and Felix Frankfurter) from the publisher's website:

A tiny, ebullient Jew who started as America’s leading liberal and ended as its most famous judicial conservative.  A Klansman who became an absolutist advocate of free speech and civil rights. A backcountry lawyer who started off trying cases about cows and went on to conduct the most important international trial ever.  A self-invented, tall-tale Westerner who narrowly missed the presidency but expanded individual freedom beyond what anyone before had dreamed.

Four more different men could hardly be imagined.   Yet they had certain things in common.  Each was a self-made man who came from humble beginnings on the edge of poverty.  Each had driving ambition and a will to succeed.  Each was, in his own way, a genius. They began as close allies and friends of FDR, but the quest to shape a new Constitution led them to competition and sometimes outright warfare.

SCORPIONS tells the story of these four great justices: their relationship with Roosevelt, with each other, and with the turbulent world of the Great Depression, World War II, and the Cold War.  It also serves as a history of the modern Constitution itself.

Professor Feldman discusses his book in this video.  You'll find reviews here (Kirkus) and here (Publishers Weekly).

Scorpions is scheduled for publication in November.

Supreme Court To Release Audio On Weekly Basis

The Supreme Court has adopted a new policy on audio recordings.   As announced today, the Court will release MP3 recordings of the week's oral arguments on the Court website each Friday.  This will be a boon for all those law school Supreme Court seminar courses.  Orin Kerr has thoughtful comments on the thinking behind this decision.

Will the Prop 8 Case Be Moot Before It Gets to the Supreme Court?

Following last week's decision finding that California's Prop 8 was unconstitutional, much of the talk centered around what the Supreme Court would do when presented with the question whether a ban on same-sex marriage was constitutional.  The thinking is that the Ninth Circuit will hear the case and, especially if the Ninth Circuit affirms the district court's finding of unconstitutionality, the Supreme Court would enter the fray.

However, I'm going to go out on a limb here and predict that, even though the Supreme Court will probably enter this debate at some point in the future, this particular case will probably be moot by the time the Supreme Court would decide.

Prop 8 opponents have organized a campaign to get marriage back on the ballot in California.  After much debate in the LGBT community, the decision was made to push for a marriage ballot resolution in 2012 (rather than 2010).  So, in two years, Californians will once again vote on whether same-sex couples can marry.

Why the confidence that a marriage resolution in 2012 will result in same-sex marriage when the marriage resolution in 2008 rejected it?  Yesterday's news from CNN illustrates it.  For the first time in a serious national poll, gay marriage polled majority support.  The position in favor of equality has momentum at its back.

Not only is there momentum, but there's also demographics.  Gay marriage has much more support by younger voters than older voters.  Four years is enough to make a huge difference in this regard, as older voters die off and younger people become voters (or, if voting age already, become more consistent voters).

Thus, in November 2012, I think it's a pretty good bet that the voters of California will vote for same-sex marriage.  They voted down same-sex marriage in 2008 by only 4 points.  In 2012, they'll probably vote in favor of same-sex marriage by a small, but definite margin.  Prop 8 will be history.  Assuming a normal appeals process, involving a panel of the Ninth Circuit, an en banc review by the Ninth Circuit, then a certiorari petition to the Supreme Court, followed by briefing and argument, I just can't imagine the Supreme Court deciding before November 2012.

And by that time, the case will be moot, as justice will already have been attained through the ballot box.

Cross-posted at the Feminist Law Professors.

Justice Alito's Living Constitution

What is Justice Alito's view of living constitutionalism?  He certainly wouldn't want to endorse it formally.  But over at Co-op, Tommy Crocker offers up a nice explanation of how Alito has just outed himself as a living constitutionalist in McDonald v. Chicago.  Sure, Alito might abandon the approach next time (and OK, he'll surely deny it this time)  but for now, and for future Justices who need the analytical ammo, I'm kind of liking Tommy's take.

Student Loans and the Second Amendment

Family squabbles over money?  Old news.  But suing one of your parents to enforce a promise to pay for a college education?  We don't see that every day.  Story here (hat tip to Lounge fan Mike Cassidy).

And Greg Abbott (current Texas AG and former Texas Supreme Court Justice) weighs in on the recent SCOTUS opinion in McDonald v. City of Chicago with this editorial.

The Christian Legal Society and the Westboro Baptist Church

Monday’s decision in Christian Legal Society v. Martinez has drawn rebukes from a number of law bloggers (among others, Rick Garnett, Rob Vischer, and Greg Sisk on Mirror of Justice and Dave Opderbeck, Bob Cochran, and Steve Smith on Law, Religion, and Ethics).  I share their concerns and have expressed some of my own thoughts about the case in an op-ed in today’s Raleigh News & Observer.  (I also helped prepare an amicus brief in support of the Christian Legal Society.)

Martinez at its core involved a clash between equality and diversity, and in this case, diversity should have prevailed.  As I note in my op-ed, Justice Alito’s warning that Monday’s decision “is a serious setback for freedom of expression in this country” doesn’t go far enough.  Expression presupposes existence.  And Martinez doesn’t silence the Christian Legal Society at Hastings—it destroys it.

That being said, this is a hard case.  And rather than rehash arguments that I’ve made elsewhere, I thought I’d explore a tension in the other direction, prompted by a case that the Court will decide in its next term, Snyder v. Phelps.  Suppose that Martinez had come out the other way.  What if the next student group seeking official recognition at a public law school wasn’t the Christian Legal Society but the “Westboro Baptist Church Legal Society”?  The scenario is not implausible.  Fred Phelps, the founder and pastor of Westboro Baptist Church, also founded the Phelps Chartered Law Firm in 1964.  (Ironically, he began his career as a successful civil rights lawyer.)  According to the firm’s website, Phelps, his wife, and eleven of his thirteen children have law degrees, most of them from Washburn University School of Law, a public law school.  If Washburn were to welcome the Christian Legal Society, could it then exclude the Westboro Baptist Church Legal Society?  It seems unlikely that there is a constitutionally significant difference between the two groups on either free exercise or freedom of association grounds.  From the perspective of the Westboro Baptists, it is not they but other Christians who are illegitimate and heretical.   And from the perspective of the state that wishes to enforce its antidiscrimination norms, both groups are offensive and discriminatory.  Those who would draw a moral distinction between the Christian Legal Society and the Westboro Baptist Church Legal Society will likely find that they need to keep the bathwater to keep the baby.  I don’t like that outcome, but I prefer it to the alternative that the Court has handed us with Martinez.  

The Real Question Is: Where Was Lindsey Graham on Lag BaOmer?

Was Lindsey Graham just revealing his ignorance, or was he trying to remind the home crowd that Kagan's not, you know, Christian?

Either way, Kagan played it brilliantly.