Archive for the ‘U.S Supreme Court’ Category

The Power of Money

Written by Rebecca Zietlow on September 17th, 2009

Last week, the Supreme Court heard the oral argument Citizens United v. FEC, which could become a landmark First Amendment case. At issue is the constitutionality of the FEC’s ban of anti-Hillary documentary sponsored by corporate funds. The Court could decide the issue narrowly, on the tmpphpvMlalIgrounds that this particular commercial speech was clearly political and thus warrants the highest level of First Amendment scrutiny. However, comments by several justices at the oral argument hint that the Court may use this case as a vehicle for establishing a new rule – that commercial speech merits the same strict scrutiny as does political speech. Until now, the Court has applied a lower level of scrutiny to commercial speech. The reason for this practice is that because commercial speech is for profit, there is less of a danger of chilling that speech than there is for political speech. If the Court does use Citizens United v. FEC as a vehicle for establishing a new level of review for commercial speech, thousands of statutes that currently regulate business and commercial speech will fall under attack, and may be struck down. Monied interests, which are already far too powerful in our political system, would become even more powerful.

If the Court issues a broad ruling in Citizens United v. FEC, that would be consistent with a trend on the Court to protect the interests of property owners and businesses. The Court has established a new regulatory takings doctrine which makes it considerably more difficult for the government to regulate property in the public interest (though the Court’s ruling in Kelo was a step backwards in this line of cases). The Court has established new limits on punitive damages in tort cases brought against multi-national corporations like Exxon. If the Court, as expected, issues a broad ruling in favor of corporate commercial speech in Citizens United v. FEC, it will be just another Supreme Court ruling in favor of the “haves” at the expense of the “have nots.”

Justice Sonia Sotomayor

Written by Robert Justin Lipkin on August 8th, 2009


It’s official: the 111th Associate Justice of the United States Supreme Court has now been sworn in. I am neither female nor Latino; yet I’m brimming with pride. Perhaps, since I am neither female nor latino, “delight” is more appropriate. NO! I might not be female or latino, but that doesn’t prevent me from being proud of  another human being whose ethnicity and gender has disadvantaged her in this great egalitarian society and has gone on to beat the odds.   The day is finally here. Finally, a Hispanic on the Court—another minority–and the third woman.  I look forward to teaching her judicial opinions.

One Step Closer for the First Latina Appointed to the Court

Written by Robert Justin Lipkin on July 28th, 2009

As reported in the NY Times: “The Senate Judiciary Committee voted, 13 to 6, on Tuesday to endorse the Supreme Court nomination of Judge Sonia Sotomayor, easing her path to likely confirmation as the first Hispanic member of the tribunal.”  The question now is just how many total votes Judge Sotomayor will receive. Senator Lindsay Graham was the only Republican on the committee to vote in favor of Judge Sotomayor. Why? Is it plausible to believe that she wouldn’t get a yes vote from other Republicans in a fair and impartial procedure.  Judges, of course, must be fair and impartial, but Senators Grassley and Hatch do not. What a system?

Will these “fair and impartial” senators and their kin suffer electorally in the next election?  Should they?

The Most Dangerous Supreme Court Case

Written by Rebecca Zietlow on July 23rd, 2009

There’s been a lot of talk recently about the Supreme Court’s Ricci case, but by far the most important case decided by the Court this year is Ashcroft v. Iqbal. In that case, the Court upheld the dismissal of a civil rights claim broughashcroft_CV_20090519130315t by a Pakistani immigrant held in the wake of 9/11 against the Attorney General of the United States.  What’s surprising is not that the Court dismissed the case, since even the least jaded among us would have anticipated that outcome.  What’s really significant about Iqbal is that the Court applied a new rule to all civil cases that will make it much more difficult for all civil rights plaintiffs, indeed all plaintiffs in general, to survive a motion to dismiss.  The Court’s new rule is that a judge can dismiss any claim when the judge believes that the plaintiff’s claim is not plausible.  What will judges rely on to make this determination?  According to Justice Kennedy, the judge should rely on “judicial experience” and “common sense.”   That’s not what the Federal Rules of Civil Procedure say – they only require that the complaint include a “short and plain statement of the claim.”

Why does this matter?  It matters because the Iqbal decision is an invitation for judges to rely on their own discretion to decide whether a plaintiff can use the system of “discovery” to get information to back up his or her claim.  It matters because the judges and members of Congress on the committee to draft the Federal Rules of Civil Procedure could not have made their intention more clear – they required the plaintiff only to give notice or his or her legal claim and back it up with a minimal statement of facts, so that plaintiffs could get access to federal courts.  Iqbal has been cited 500 times by federal judges since it came down less than two months ago.  Many of the judges citing the case were granting motions to dismiss.

The Iqbal hurdle will be the hardest to overcome for exactly the type of people who most need the federal courts – civil rights and employment discrimination plaintiffs.   They have the least resources to get the information they may now need to convince skeptical federal judges that they deserve their day in court.  That’s why Iqbal is not only the most important case to come down this year, it is also probably the worst.

Do Judicial Confirmation Hearings Help Us Get to Know Future Supreme Court Justices?

Written by Robert Justin Lipkin on July 20th, 2009

The Senate confirmation hearings generated virtually no significant information about a nominee that would help the American people learn about the judicial philosophy of a future Supreme Court Justice.  The explicit language and implicit interpretive norms embedded in that language set up enormous roadblocks for getting a sense of howtmpphpnrkium1.jpg nominees approach the Constitution and whether the nominees are committed to grand constitutional theories, specific conceptions of constitutional interpretive methodology, or the nature of the role of the courts in American constitutional jurisprudence. For example, each of the last three nominees indicated that they were committed to the “rule of law” without specifying in any detail what that means.  Then Judge Roberts committed himself to the Supreme Court version of umpire Bill Klem by insisting the Chief Justice’s job was to call ball and strikes according to the rules of baseball, not altering those rules in any manner at all. Judge Sotomayor reassured us that she is committed to “fidelity to law” without explaining what that means either generally or in specific cases.  And the senators, oh the senators! They kept throwing around such locutions as “judicial activism,” “interpreting (or applying) law, not making it,” “legislating from the bench,” “the law’s plain meaning,” and other forms of discourse that set up a wall between the Constitution and the public understanding of the document’s complexity and nuances.  Of course, we understand the political reasons for doing this, especially after the disastrous Bork hearings when a genuine dialogue occurred, but that doesn’t excuse the perversion of a process that is essential for judicial accountability and the future of American constitutionalism.

Senator Coburn’s Misreading of the Tenth Amendment

Written by Robert Justin Lipkin on July 17th, 2009

It sometimes seems that it is just those people who insist on understanding the Constitution by attending to its plain meaning that get this meaning wrong.  No better example exists than Senator Tom Coburn’s misstatement of the Tenth Amendment in today’s confirmation hearings:

You know, I — people call me simple, because I really believe this document is the genesis of our success as a country. And I believe these words are plainly written, and I believe we ignore them at our peril. And my hope is that the Supreme Court will re-look at the intent of our founders and the 10th Amendment, where they guaranteed that everything that wasn’t spelled out specifically for the Congress to do was explicitly reserved to the states and to the people. To do less than that undermines our future.

But that’s not what the Tenth Amendment says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the ptmpphprcldyw1.jpgeople.” This doesn’t come close to saying that “everything that wasn’t spelled out specifically for Congress to do was explicitly reserved to the states and to the people.” This might be what Senator Coburn wants the Tenth amendment to say, but that’s just judicial activism, legislating from the bench, making, not interpreting law. Indeed, Senator Coburn’s interpretation of the Tenth Amendment is closer to a similar, but much stronger “states’ rights” provision in the Articles of Confederation, the first American charter replaced by the United States Constitution. Here’s the relevant provision “Article II. Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.” (Emphasis added) There’s no “expressly,” “spelled out specifically,” or “explicitly reserved to the states and to the people” in the Tenth amendment. If Senator Coburn is going to object to going beyond the plain words of the Constitution, shouldn’t he be required to know what those words are?

Thoughts on the Sotomayor Hearings

Written by Rebecca Zietlow on July 16th, 2009

When I wasotomayor.jpgs a first year student at Yale Law School, some of the upper level students organized a conference on “Women of Color and the Law.”  The speakers at this conference spoke about the failure of our law to adequately address the needs of women of color, and the role of women of color as lawyers.  The conference had a strong impact on me and my friends.  While in law school, we focused in our classes and our extracurricular activities on the law’s relationship to women of color and other people who have been historically disempowered in out society.  After law school, as a legal services lawyer in the South side of Chicago, I personally witnessed the failure of the law to address the needs of my clients, who were primarily women of color.  Now, there is a woman of color, Sonya Sotomayor, who is about to become a member of the top Court in our country.  I never would have imagined this moment when I was in law school, or when I was a practicing lawyer.

As far as I know, Sotomayor was not present at the Women of Color Conference.  It occurred years after she graduated from Yale.  However, during her hearings she has found herself discussing some of the issues addressed by the speakers at that meeting – the impact of a experience on how a person understands the law, and the importance of a judge mitigating his or her personal views when he or she is interpreting the law.  In a world dedicated to the myth that justice is blind (that is, that judges are not influenced by their backgrounds and experiences), her nuanced explanations are a tough sell.  Fortunately, she is maintaining her composure, and her strong record and the large Democratic majority in the Senate virtually insure that she will be confirmed.  I look forward to that day.

Comparing Umpiring and Judging: Idiotic or Unintentionally Insightful

Written by Henry L. Chambers, Jr. on July 15th, 2009

Chief Justice Roberts famously deemed his vision of judging similar to his vision of umpiring.  According to him, both the judge and the umpire are supposed to call balls and strikes and nothing more.  This vision of judging and the implication that judging is almost robotic has been criticized by some as far too simplistic, particularly as applied to a Supreme Court justice.  Nonetheless, Republican senators have repeatedly noted the umpire/judge analogy during the Judge Sonia Sotomayor’s confirmation hearing.

However, if Roberts had thought a bit harder, he would have realized that the umpiring analogy is a very sensible one, just not for the proposition he claimed.  Umpires are charged with calling balls and strikes.  They have a rulebook that defines what is a ball and what is a strike.   However, as any true baseball fan knows, that is only the beginning of the story.  Few umpires call strikes that are high in the umpire_study_08101.jpgstrike zone defined by the rulebook.  Some umpires are known for having a wide strike zone and some are known for having a narrow strike zone.  Depending on where the umpire stands, he can have a difficult time determining whether an inside pitch is a strike or a difficult time determining if an outside pitch is a strike.  Nonetheless, every umpire would claim merely to be calling balls and strikes.  The variation in umpiring is understood in baseball and is taken to be part of the game.  As long as the umpire is consistent with his calls and does not have a wide strike zone for some and a narrow strike zone for others, the deviation from the defined strike zone of the rulebook is accepted.  One irony, of course, is that the discretion (or deviation from the rulebook) that is deemed a part of baseball umpiring is far broader than any deviation from the law that Roberts would claim tolerate.  Nevertheless, Roberts’ true feelings about judicial discretion and Supreme Court judging can be found in the Court’s recent Ricci decision, where he and four of his colleagues simply changed the rulebook rather than call the balls and strikes of that case.

The Hyde Amendment: No Need for Equal Protection of Law for Republican Causes

Written by Robert Justin Lipkin on July 14th, 2009

Last night on the Chris Mathews’ Hardball  a discussion arose with Senator Orrin hatch about the possibility that President Obama’s health care program will reject tfinal-3.jpghe Hyde Amendment which prohibits spending federal funds on abortions. It’s okay to spend federal funds on childbirth, but not abortion.  Where’s the equal protection here? Two pregnant woman exercise their reproductive rights, one by choosing to terminate the pregnancy, the other by not. How can any reasonably conception of equality sanction such treatment? Lindsay Graham chimed in during the hearing by bristling at the notion that his tax dollars should be used to fund abortion.  But why should my tax dollars be used to fund childbirth? Perhaps I’m worried about overpopulation or simply have libertarian tendencies against governmental support for such private conduct?  In general the government can favor one policy over the other, but does equality sanction permitting such partiality when reproductive rights are concerned?  The Court has said yes.  But this is not a question of case law.  Rather, it’s a question of Republican consistency. Can two pregnant women in relevantly similar circumstances be treated in such a dissimilar manner? How the Republicans’ conception of equal protection can sanction such distinction? Or better yet how can the rule of law permit such a political choice?

The Republicans on the Senate Judiciary Committee are trumpeting the rule of law, equal protection under the law, and treating litigants in a similar manner. Yet, regarding the grotesque Hyde Amendment suddenly disparate treatment is permissible. The Republicans need to explain why the causes they favor need not be subject to the rule of law, but Democratic causes, well that’s another matter.

Hopefully, the Republicans member of the Senate Judiciary Committee will think twice before inconsistently throwing around “equal protection” and “rule of law” when these terms apply to Judge Sonia Sotomayor’s judicial decisions.

Jeff Sessions: Empathy Towards One Litigant Means Bias Toward the Other Litigant?

Written by Robert Justin Lipkin on July 13th, 2009

Senator Minority lead Jeff Sessions made the astounding remark on Face the Nation Sunday that when a judge shows empathy toward one litigator, it means he or she will show bias toward the other litigant. What can this possibly mean? Showing or experiencing empathy means taking the appropriate action to experience oe0fbcabb6007999e.jpgr appreciate the circumstances, needs, and feelings of another person, especially when the other person is a member of group with which one is not terribly familiar. If I own a service station and have a conflict (or just want to understand) someone who breeds horses, empathy is the attempt to put myself in the breeder’s circumstances by asking the breeder questions relevant to our conflict. Empathy is the attempt to put myself in the other fellow’s shoes. If I’m a judge assigned to settle the conflict between the service station owner and the breeder empathy requires me to try to appreciate each party’s gripe as sympathetically as I can. As a judge empathy requires me to appreciate everything I can about each party relevant to the rules governing the legal conflict. Understood in this manner, empathy for one litigant cannot mean bias toward the other. Rather, it means appreciating each party’s circumstances and each party’s complaint.  I must try to appreciate why each party feels wronged and what is required to make them feel whole. Yet, according to Senator Sessions, empathy is inappropriate, perhaps even dangerous, because it’s a zero-sum game. If I genuinely empathize with one party, I must show bias toward the other party. It’s difficult to understand how a leading figure in the Senate can be so unaware of the role empathy plays in human conflict resolution. Just imagine a parent settling an argument between two children. Empathy doesn’t require favoring one child at the expense of the other. It means understanding each child’s complaint sympathetically and impartially and then fashioning a resolution that is fair to both children.