Friends, The new Alliance Alert Daily Digest is finally here! You can subscribe to the daily e-mail here: Subscribe to our mailing list * indicates required Email Address * First Name * Last Name *
Gregg Nunziata at USA Today: The stakes are high in this presidential election, and one of the most consequential questions before the voters concerns the branch of government that is not officially on the ballot. In November, Americans will set the direction of the U.S. Supreme Court for decades to come.
Blog of the Legal Times: With a confirmation of a woman to the District Court of the Southern District of Iowa late Monday afternoon, Obama had confirmed as many women to the federal bench in his first term—72—than George W. Bush did in his two terms in office, a White House spokesman said in an email to media.
USCourts.gov: The Judicial Conference of the United States today agreed to close six non-resident federal court facilities—the latest in a series of cost-cutting measures implemented by the federal Judiciary’s national policy-making body.
Carrie Severino at National Review: Last Friday the West Virginia Supreme Court stopped Allan Loughry, a candidate for the West Virginia supreme court, from receiving additional public funding — funding that was triggered after the campaign expenditures of Mr. Loughrey’s opponent, Justice Robin Davis, crossed a certain threshold. The court found, in part, that because Mr. Laughrey’s additional public funding could neutralize Justice Davis’s campaign expenditures, the funds would violate Justice Davis’s political speech rights.
Jonathan Adler discusses the issue at the Volokh Conspiracy.
Heritage Foundation: The Supreme Court’s last term ended with a bang, but the upcoming term is shaping up to be arguably as significant. Just days before the High Court’s next term begins, The Heritage Foundation will preview the likely blockbuster cases, with Supreme Court luminaries Paul Clement and Tom Goldstein . . .
Dale Carpenter at the Volokh Conspiracy: Eighty-seven percent of constitutional law professors back marriage for same-sex couples, and 7 out of 10 believe the federal Defense of Marriage Act is unconstitutional, but only a slight majority of 54% think the federal Constitution requires states to recognize same-sex marriages. That’s the result of a survey of 485 constitutional law professors that I conducted this summer with the help of my indefatigable and indispensable research assistant, Minnesota 2L Samuel Light. In this post, I want to highlight some of the main results from the survey.
Wall Street Journal: The Arizona Supreme Court issued a unanimous ruling on Friday that put tattoos under the umbrella of the First Amendment but stopped short of forcing Mesa, Ariz., City Council to allow tattoo artists to open a parlor, the Arizona Republic reported.
VerdeNews.com: But attorneys from non-reciprocity states have to take the full-blown, two-day Bar examination. That requires not only extensive preparation — particularly for those who have been out of school for some time — but also waiting to find out if there was a passing score. The lawyers who are suing are from California and Montana, both non-reciprocity states. Also suing is the National Association for the Advancement of Multijurisdictional Practice, based in California.
Reuters: Lawyers for Republican Louisiana Governor Bobby Jindal have challenged a U.S. federal judge’s ruling that would allow a black state supreme court justice to become the court’s next chief justice.
NY Times: The November presidential election, widely expected to rest on a final blitz of advertising and furious campaigning, may also hinge nearly as much on last-minute legal battles over when and how ballots should be cast and counted, particularly if the race remains tight in battleground states.
Georgtown Law: The Supreme Court Term Preview Report for October Term 2012, summarizing all cases in which the Court granted review before the start of the current Term . . .
Michigan Law School: Still, she said, “There are certain substantive matters that we divide on because we approach Constitutional decision-making in a different sort of way, because we bring different methodologies to the table, because we have different views about governing precedents and how broad or narrow those precedents are.” The Court, she added, would be better off “if we had fewer of these 5-4 cases. … I would like to have a Court where there’s more unpredictability of decision-making.”
Concurring Opinions: This week, law professors are encouraged to call federal judges and ask them to pull from an enormous pile of clerkship candidates particular students whose merits might be otherwise obscured.
Bradenton.com: The Florida Supreme Court listened but also responded Wednesday as three lower court judges and a high-profile lawyer criticized new rules for the state courts, including term limits for chief judges and new limits on what judges are permitted to say. The high court set off a firestorm in February by adopting rules limiting judges’ comments to lawmakers and others about the court system and setting eight-year term limits for chief circuit and district court of appeal judges.
NJ.com: To cope with the continued shortage of justices on the Supreme Court, Chief Justice Stuart Rabner said today he is reassigning two appellate judges to the state’s high court beginning Oct. 1.
Las Vegas Sun: A planned visit by conservative U.S. Supreme Court Justice Antonin Scalia to a Las Vegas Roman Catholic church for a ceremony seeking divine guidance for legal professionals and to a Las Vegas Strip casino reception afterward was drawing criticism Tuesday from a liberal activist who promised demonstrations to mark the events.
NOLA.com: Federal District Court Judge Susie Morgan ruled Saturday that Justice Bernette Johnson has the seniority needed to succeed Catherine “Kitty” Kimball as chief justice of the Louisiana Supreme Court when Kimball retires early next year. In a decision issued just before 7 p.m., Morgan ruled that “any tenure accrued by Justice Johnson between Nov. 16, 1994 and October 7, 2000, is to be credited to her for all purposes under Louisiana law,” which would include determining whether she is the second most senior justice after Chief Justice Kimball.
NJ.com: New Jersey will be the stage for what’s likely to be a brutal campaign this fall, but it won’t have anything to do with the presidential election. For the first time in the state’s modern history, the New Jersey Supreme Court — an institution meant to be isolated from politics — will be subjected to a popular referendum reeking of politics.
Ed Whelan at National Review Bench Memos: In the New Republic, Seventh Circuit judge Richard A. Posner has a very long essay (more than 5000 words) attacking Reading Law: The Interpretation of Legal Texts, the new treatise co-authored by Justice Antonin Scalia and Bryan A. Garner (and the subject of various posts of mine, beginning here, over the past month). As I hope to elaborate in additional posts over the next week or so, Posner’s attack is remarkably slipshod and untrustworthy. Here are some opening observations . . .
See SCOTUS Blog Petition of the Day reporting on: Agency for International Development v. Alliance for Open Society International, Inc., No. 12-10
Blog of the Legal Times: The former senator told the dozens of lawyers gathered that they have “a lot of work to do to make sure this election is not stolen,” saying that President Obama will “stop at nothing” to get the votes he needs to win. Bond said he “has a feeling” that the DOJ won’t crack down on election irregularities.
Richard A. Posner at the New Republic: Judges like to say that all they do when they interpret a constitutional or statutory provision is apply, to the facts of the particular case, law that has been given to them. They do not make law: that is the job of legislators, and for the authors and ratifiers of constitutions. They are not Apollo; they are his oracle. They are passive interpreters. Their role is semantic.
Michael Fragoso at Public Discourse: Criticism that Republican justices have only hurt the pro-life cause is misguided, because Republican presidents from Reagan onward have deliberately tried to advance judicial conservatism through federal court appointees–a commitment that has brought victories both for judicial conservatism and the pro-life cause. The second of a two part series.
David B. Rivkin, Jr. at the Wall Street Journal: In “Reading Law,” Supreme Court Justice Antonin Scalia and legal writer Bryan A. Garner argue for paying close attention to the original meaning of the words in the Constitution and other legal documents.
Carrie Severino at National Review: In both cases, the majority relied heavily on relevant texts and the original meaning of those texts, precedent, and fidelity to the concept that judges play an important and structurally defined role with respect to the actions of the other branches of government. Governor Pawlenty’s campaign for the Oval Office was short-lived, but, as these cases demonstrate, his impact on the Minnesota Supreme Court will not be.
The National Law Journal: Average tuition and fees at private law schools will increase approximately 4 percent over last year to $40,585, according to an examination of published rates by The National Law Journal . . . The single biggest factor in the ability of law schools to raise their prices is the availability of government loans, Organ said. As long as students can easily borrow the full cost of their tuition, schools will face less pressure to contain their costs. This year’s tuition increases “tell you the extent to which federal loan money makes students less price sensitive and gives pricing power to law schools,” he said. “I think the current system is pretty fragile. It’s completely dependent on the federal government making loans available.”
Washington Post: On Monday, public-interest group Common Cause filed a legal brief in a U.S. District Court trying to persuade the court that the filibuster’s 60-vote threshold in the Senate violates the Constitution. “Our filing today demonstrates how far the Senate, now effectively dominated by a minority, has strayed from the intent of America’s founders as expressed in our Constitution,” Common Cause president Bob Edgar said in a statement.
Freedom from Religion Foundation: The Aug. 27 letter by FFRF attorney Andrew Seidel to Superintendent Damon Raines points out that Liberty Counsel’s “no cost” representation offer, which the Liberty Counsel mistakenly sent to Walker County, Ala., instead of Walker County, Ga., is “disingenuous.” Seidel explained, “Even with pro bono legal representation, a court battle could cost Walker County taxpayers thousands or hundreds of thousands of dollars.”
Volokh Conspiracy: Prof. Mike Dorf has a post at Dorf on Law describing the brief he coauthored on behalf of the Association of American Law School in Fisher v. University of Texas. The gist of the brief is that if the Supreme Court reasons that Texas may not engage in affirmative action preferences because its race-neutral ten-percent plan already created a “diverse” class, this could mean that all institutions of higher education, including law schools, that seek racial and ethnic diversity would need to replace their current admissions policies with a rote, percentage-based admissions system to comply with the Constitution and federal law.
SCOTUS Blog: The two high-profile lawyers who started the nation’s most significant lawsuit attempting to gain marriage rights for same-sex couples told the Supreme Court on Friday that it might find it very interesting to take up that issue now, but urged the Justices not to do so in the only case now at the Court that could raise that question — the case testing the constitutionality of California’s “Proposition 8.” Attorneys Theodore B. Olson and David Boies argued that the case has procedural flaws, made no change in the law, involves no conflict among lower courts, and might raise core constitutional issues that the Court may not be ready to confront.
SCOTUS Blog: Then over the next days and weeks, the Justices head off for summer travel – teaching, vacationing, writing, lecturing, and attending bar association meetings and conferences of the federal appeals courts. But ask Supreme Court law clerks how they spent their summer vacation, and the answer is easy: reading petitions for certiorari by the hundreds.
David Skeel at the Wall Street Journal (via Google): No one doubts that the coming election will be the most important referendum on the size and nature of government in a generation. But another issue is nearly as important and has gotten far less attention: our crumbling commitment to the rule of law.
Findlaw: The California Supreme Court ruled last week that sentencing a juvenile offender to 110 years in prison qualifies as cruel and unusual punishment, reports the Los Angeles Times. So what should be the upper limit for juvenile offenders?
Findlaw: The accrediting body of law schools, the American Bar Association (ABA), has passed a new set of rules regarding reporting of law school data like employment and salary information.
Wall Street Journal: But even with all that debate over the Supreme Court and its rulings, two-thirds of Americans can’t name any justices, according to a survey released Monday by FindLaw.com, a legal information Web site.
Quad-City Times: Wiggins is one of four Iowa Supreme Court judges up for retention on the November ballot, but he is the only one of the four who was on the bench when the court unanimously ruled in the Varnum v. Brien case to legalize same-sex marriage in Iowa.
PennLive.com: Six justices on the state’s Supreme Court stand to play a bigger role in determining the outcome of this year’s elections in Pennsylvania than any other voter.
Citizen Link: Justice David Wiggins was one of the seven Iowa Supreme Court justices that voted to legislate the state’s new marriage redefinition from the bench in the 2009 Varnum v. Brien case. In 2010, three of the seven justices faced the voters in a retention election (an up or down vote of approval/disapproval held every set number of years) and lost their jobs. Now it’s Wiggins’ turn to face the music . . .
LifeNews: “We call on Howe and others involved to immediately resign and we call for an independent investigation into this conspiracy to obstruct justice,” said Operation Rescue President Troy Newman. “This is corruption, plain and simple.”
Pro Life Blogs: New documents obtained by Operation Rescue through Kansas Open Records Act requests prove that records crucial to the criminal prosecution of Comprehensive Health of Planned Parenthood of Overland Park that were said to have been destroyed currently exist and were placed under seal in the custody of the Shawnee County Clerk of the Court by Judge Richard Anderson on January 12, 2012.
AP: A jury on Thursday awarded a gay University of Michigan student body president $4.5 million in his lawsuit against a former Michigan assistant attorney general who posted about him in an anti-gay blog.
Religion Clause Blog: As reported by the St. Paul Pioneer Press and by MinnLawyer Blog, the Minnesota Office of Lawyers Professional Responsibility on Wednesday filed with the Minnesota Supreme Court a petition seeking suspension from practice of attorney Rebekah Nett. The petition alleges a pattern of bad faith litigation and reckless and harassing statements.
his weekend the New York Times weighed in to defend Justice Wiggins. According to the Times, Republicans are “stoking intolerance and further politicizing a retention election meant to weed out incompetent or corrupt judges.” The paper’s editors apparently forgot to read the Iowa Constitution, which does not guarantee a right to gay marriage. On the other hand, the accountability mechanism that the Times deplores, the retention election, appears explicitly in the text of Article V, Section 17 . . .
ABA Journal: Civil rights activist Morris Dees was awarded the ABA Medal, the association’s highest honor, during a meeting of the ABA House of Delegates on Tuesday.
The American Prospect: Iowa Republicans aren’t ready to cast aside their anger over the state Supreme Court’s 2009 decision legalizing same-sex marriage. After successfully unseating three of the justices who joined the unanimous decision in 2010, they’re going after Justice David Wiggins, who is up for a retention vote this year. The new conservative campaign won’t change Iowa’s same-sex marriage law, but it further politicizes the state’s once-independent judiciary and may boost turnout for Mitt Romney in a key swing state.
Eugene Volokh at the Volokh Conspiracy: I’ve blogged quite a bit about why broad bans on the use of foreign law in American courts are improper. But what about narrower limitations, such as the American Laws for American Courts proposal that has been enacted in some form in Arizona, Louisiana, and Tennessee?
Washington Post: Supreme Court Justice Anthony Kennedy says the Senate confirmation for new federal judges is too political and is keeping out highly qualified candidates who don’t want to go through the difficult process.
Blog of the Legal Times: Three local senior judges – one on the District of Columbia Court of Appeals and two on the District of Columbia Superior Court – are up for review and reappointment.
Bloomberg: Four of the court’s nine justices will be at least 74 years old on Inauguration Day in January — the first time that will have occurred in 28 years. Their ages suggest that one or more may be off the bench within the next four years, letting either Barack Obama or Mitt Romney appoint a successor and leave a decades-long legal imprint.
San Francisco Chronicle: California Attorney General Kamala Harris has urged the U.S. Supreme Court to let public colleges in other states keep their authority to consider a student’s race in admissions decisions, saying California’s ban on affirmative action has made schools less diverse and harmed students of all races.
Center for American Progress: Legislators in 24 states proposed legislation during the past legislative session (2011–2012) that would enable governors to replace competent state judges, a power that would, in practice, result in more conservative replacements in states across the country. Legislators in Missouri, Florida, and Arizona managed to place referendums on this November’s ballot that if approved by voters would severely restrict judicial independence and belie the promise of fairness before the law
Montgomery Advertiser: Democratic officials did clear Lyon, 60, of campaign finance violations registered in a complaint filed with the party last week. However, they cited Lyon’s statements about gays and lesbians. In comments made on Facebook, Lyon called homosexuals and those who support same-sex marriage “an abomination of God.”
NOLA.com: But in a court pleading Monday, Jindal’s executive counsel, Elizabeth Baker Murrill, joined four attorneys from the New Orleans firm of Christovich & Kearney, who had been assigned by the state to represent members of the Supreme Court aside from Johnson, and made it plain that the governor believes it is a an issue for the state, and not federal court to decide.
Cincinnati.com: Sharon Kennedy had one big advantage last year when she launched her campaign to become the first Butler County resident elected to the Ohio Supreme Court in almost 150 years. She’s a Republican.
Jeffrey Toobin at the New Yorker: A new report, issued yesterday by the left-leaning Center for American Progress, shows that the race for control of state judiciaries has become a rout. The report, entitled “Big Business Taking over State Supreme Courts,” found that . . .
Carl Tobias at The Hill: In June, the Senate GOP leadership proclaimed that it would invoke the “Thurmond Rule” and oppose appointment of each appeals court nominee recommended by President Barack Obama until after the November election. This decision threatens the confirmation of William Kayatta, the excellent, noncontroversial nominee whom Obama selected after First Circuit Judge Kermit Lipez took senior status in late 2011.
Carrie Severino at National Review: Iowa’s supreme-court judges are initially selected by an unaccountable lawyer-dominated commission, via the system known as the Missouri Plan. As in other states, that method of selection has tilted Iowa’s judicial branch to the left on a range of issues, including gay marriage. And just as the people of Iowa demand more accountability, Justice Wiggins and his allies at the Times make the case for less.
Blog of the Legal Times: More than 50 former federal judges and prosecutors are urging the U.S. Supreme Court to hear a dispute over alleged government misconduct, taking a position in the case against the Justice Department. | Amicus Brief
Des Moines Register: A socially conservative political rally at a Waukee church Saturday served as the kickoff for a renewed effort to throw out the Iowa Supreme Court justices who made same-sex marriage legal. The activist group Iowans for Freedom will run a campaign this fall against the retention of Justice David Wiggins . . .
Rachel Alexander at Townhall: One of only two right-leaning justices who has served on the Washington Supreme Court in recent years is in the battle of his life to regain his seat. As a result of his freedom of religion, sanctity of marriage, gun rights, and the unborn, former Justice Richard Sanders has been a lightening rod for attacks from the left and the biased media. Those attacks finally cost him reelection in 2010, after serving on the high court for three terms since 1995.
National Review Bench Memos: Senator Graham would like to “stop the politics around being a judge,” but said nothing about the fact that the ABA’s privileged role in judicial selection has further politicized the process, usually tilting it leftward. The ABA’s glaring ideological bias has been noted by prominent commentators . . .
Governor Sean Parnell today appointed Anchorage attorney Peter Maassen to the Alaska Supreme Court. Maassen is the 22nd justice appointed to the Court, and he replaces Justice Morgan Christen, who was appointed to the United States Court of Appeals for the 9th Circuit.
PBS (includes video): U.S. Supreme Court Justice Antonin Scalia says the key factor for a judge’s ruling is finding where the balance resides in a case. Margaret Warner interviews Justice Scalia about his new book, “Reading Law: The Interpretation of Legal Texts,” and asks about his opinions on the Second Amendment and the Affordable Care Act.
Reuters at the Huffington Post: U.S. Supreme Court Justice Ruth Bader Ginsburg, 79, the eldest member of the bench and leader of its liberal wing, said she cracked two ribs in June but met all her work obligations and remains committed to staying on the court at least three more years.
Wall Street Journal (via Google): This politically charged environment, Mr. Graham maintains, is the result of the Senate’s broken process. “I’m really worried about how we’re doing confirmations. They’re turning into political events,” the South Carolina Republican said. “I’m not worried about judicial activism, I’m worried about Senate activism.” Hmm.
Palm Beach Post: A lawsuit by a conservative legal organization looking to remove from the ballot the last three Florida Supreme Court justices named by a Democratic governor was dismissed Wednesday by a Leon County circuit judge.