West Law Report

Judicially manageable standards and constitutional meaning

Posted in Harvard Law Review (Article), original meaning, Richard Fallon by mrkooenglish on June 11, 2008

Richard H. Fallon, Jr.’s article in Harvard Law Review (Mar 2006) (.pdf) (59 pages):

The Supreme Court has long held that disputes that do not lend themselves to resolution under udicially manageable standards?present nonjusticiable political questions. Filling several gaps in the literature, this Article begins by exploring what the Court means by judicial manageability. Professor Fallon identifies a series of criteria that anchor the Court analysis, but he also argues that in determining that no proposed test for implementing a constitutional guarantee is judicially manageable, the Court must often make an ultimate, all-things-considered assessment of whether the costs of allowing adjudication to proceed would exceed the benefits. This determination is so discretionary, Professor Fallon argues, that if the requirement of judicial manageability applied to the Court own decisionmaking process (as it does not), the criteria by which the Court identifies judicially unmanageable standards might themselves be disqualified as judicially unmanageable.

Although the demand for judicially manageable standards is most prominent in the political question doctrine, Professor Fallon argues that the concern to develop judicially manageable tests pervades constitutional adjudication. Until glossed by judicially formulated tests, most constitutional provisions would not pass muster as judicially manageable standards. Moreover, some of the tests that courts adopt largely for reasons of judicial manageability underenforce, whereas others overenforce, the underlying constitutional guarantees. Linking the phenomena of constitutional underenforcement and overenforcement to the demand for judicially manageable standards, Professor Fallon propounds he permissible disparity thesis?that there can be acceptable gaps between the Constitution meaning and the doctrinal tests applied by courts. He then deploys the permissible disparity thesis to cast new light on the nature and significance of both constitutional theories and constitutional rights, many of which should be viewed as partly aspirational, not necessarily requiring full, immediate enforcement.

Judge Posner: A Political Court

Judge Richard A. Posner’s FOREWORD: A POLITICAL COURT in Harvard Law Review (Nov 2005) (.pdf) (78 pages):

Scholars discuss the work of the Supreme Court in two different ways. The less common is that of social science, with its emphasis on positive rather than normative analysis, its refusal to take at face value the fficial?explanations for judicial phenomena proffered by insiders ?in a word, its realism. To a social scientist, or to a law professor or other jurist who is imbued with the social-scientific approach, the Supreme Court is an object of observation rather than of veneration or condemnation. The social scientist asks, without preconceptions drawn from the professional legal culture, why the Court decides cases as it does and in the form in which it does (long, cholarly?opinions, etc.), and what the consequences of the decisions are. The inquiry delves into such matters as the ideology and temperament of particular Justices; the appointments process; the Court caseload, procedures, and strategic interactions with Congress and other parts of government; behavioral models of judges; the influence of the Zeitgeist on judicial decisions; and ?critically ?the nature and strength of the constraints that operate on the Justices. The goal is not only to under-stand judicial behavior at the Supreme Court level, but also to understand the consequences of that behavior ?for example, to estimate how the crime rate, the number of people in prison, and the incidence of error in the criminal process would be different had the Supreme Court decided landmark criminal cases, such as Gideon v. Wainwright or Miranda v. Arizona, in favor of the government, or how our politics would differ if the Court had not entered the legislative reapportionment thicket in cases such as Baker v. Carr and Wesberry v. Sanders. An interesting recent literature, written from a diversity of political perspectives ?surprisingly, mainly from the Left ?asks the disquieting question whether the net benefits of federal constitutional law are positive, including the subsumed question whether constitutional law has really made much of a difference in the nation policies, values, and practices.

The other way in which to discuss the Court work ?and the way more familiar to lawyers, law professors, and judges ?is to subject it to normative analysis conducted from within the professional culture. The analyst praises or condemns particular doctrines or decisions, or the reasons offered for them by the Court (textual, historical, pragmatic, and so forth) ?more often condemns them, arguing that they are mistaken, unsound ?more precisely, that they are mistakes of law, that the Court simply got the law wrong. This type of Supreme Court scholarship is a branch of rhetoric or advocacy ?a continuation of brief writing and opinion writing by other means ?but it is not wholly unrelated to the first type, the social-scientific study of constitutional law. The behaviors and consequences that a nondoctrinal perspective brings to light can be, or can explain, things the normative analyst deplores (more rarely approves). So if, like Professor Henry Hart in his famous Foreword, you thought the Court was making frequent legal errors, you might attribute this to structural conditions ?to the overuse of summary reversals or, as Hart himself believed, to an excessive workload (the excess being due in part to the Court proclivity for granting certiorari in unimportant cases).
My aim in this Foreword is to be realistic, though without hewing closely to any particular social-scientific methodology; indeed, I shall perforce rely to a degree on that most dubious of methodologies, introspection ?specifically, on the impressions that I have gleaned from being a federal appellate judge for the last twenty-four years. I shall argue that, viewed realistically, the Supreme Court, at least most of the time, when it is deciding constitutional cases is a political organ, and (confining myself to constitutional law) I shall develop some implications of this view, drawing in part on earlier Forewords, such as Hart.

Part I presents statistics that bear on two issues: the tendency of the Court to behave egislatively?and the perception of the Court as an increasingly constitutional court. Part II presents my main thesis, which is that to the extent the Court is a constitutional court, it is a political body. I distinguish there between two forms of political judging, the ggressive?and the odest? my preference is for the latter. Part III examines several alternatives to the political conception of the Court: the Court as expert administrator, the Court as institutionally constrained to behave in a lawlike manner, the Court as moral vanguard, and the Court as a cosmopolitan court searching for international legal consensus. The first two alternatives are descriptively inaccurate; the latter two are aggressively political approaches covered by a veneer of legal reasoning. Part IV discusses, with reference to several recent cases, the Court potential to be a pragmatic decision maker of the odest?kind introduced in Part II.

The Extraterritorial Constitution and the Interpretive Relevance of International Law

A note in Harvard Law Review (May 2008) (.pdf) (22 pages):

For over a century, courts have wrestled with the question of whether, and to what extent, the Constitution applies outside of the United States. While this question first surged to prominence when the enterprise of American expansionism went to the Supreme Court in the Insular Cases, it has begun to receive renewed attention in recent years as the post-9/11 war on terrorism has brought extraterritoriality issues to the fore. Though the precise legal framework that will govern this question is unclear at the moment, there are indications the Constitution may apply when the result would not be “impracticable and anomalous.” Given the significance of this matter, it is striking that the “impracticable and anomalous” standard “has not yet acquired an academic theorist who would elaborate and defend it as the best interpretation of U.S. constitutionalism.” Indeed, the standard has been criticized for giving courts too much discretion on sensitive matters.

Part I discusses the state of the law following United States v. Verdugo-Urquidez (1990) and the contemporary significance of the question of extraterritorial application of the Constitution. Part II situates the “impracticable and anomalous” standard in historical context, drawing on the nineteenth-century use of international law to identify “powers inherent in sovereignty,” and lays out a justification for the contemporary use of international law in fleshing out the Constitution’s extraterritorial applicability.

Part III argues that in the context of the war on terrorism, it is sensible to look to IHL to guide the inquiry into when certain rights apply extraterritorially. By reference to the differences between battlefield targeting law and detention law — vestiges of the traditional “Hague Law”-“Geneva Law” distinction in IHL — this Note demonstrates how, under the “impracticable and anomalous”standard, Fourth Amendment protections do not apply to house-tohouse counterterrorist sweeps abroad, but Fifth Amendment procedural due process protections apply to war on terrorism detainees held extraterritorially. These examples prove nothing conclusively, but they do illustrate the promise the international law–based approach offers in clarifying this murky area of the law. Finally, Part IV concludes with some discussion — and some potential caveats — regarding the broader usefulness of this framework beyond IHL and the war on terrorism.

“A Discomfiting Threat to Free Speech”

Posted in Amendment 1st, Free speech, Justice David Souter, Online Child Pornography by mrkooenglish on May 21, 2008

(1)
NY Times editorial called the decision of US v Williams:

The dissenters are right that the court should have made Congress go back and pass a more carefully written law. They are also right that the court’s analysis undermines protections for political speech.

(2)
In the dissenting, Justice Souter writes in the last para.:

Perhaps I am wrong, but without some demonstration that juries have been rendering exploitation of children unpunishable, there is no excuse for cutting back on the First Amendment and no alternative to finding overbreadth in this Act. I would hold it unconstitutional on the authority of Ferber [1982] and Free Speech Coalition [2002].

Supreme Court Upholds Child Pornography Law

Posted in Amendment 1st, Due process, Online Child Pornography by mrkooenglish on May 20, 2008

(1)
NY Times reported:

The Supreme Court on Monday upheld the latest Congressional effort to curb the spread of child pornography on the Internet, a 2003 law that makes it a crime to offer or solicit sexually explicit images of children.

The law, known as the Protect Act, applies regardless of whether the material turns out to consist solely of computer-generated images, or digitally altered photographs of adults, or even if the offer is fraudulent and the material does not exist at all.

(2)
“His conviction for possessing the images, and his five-year sentence for that crime, were not at issue in the case.”

(3)
It is about the 1st Ammendment:

“Offers to provide or requests to obtain child pornography are categorically excluded from the First Amendment,” Justice Antonin Scalia wrote for the 7-to-2 majority.

The law at issue was a response to a Supreme Court ruling in 2002, a decision that found unconstitutional an earlier law that prohibited simple possession of purported child pornography even if the material turned out not to depict real children. The First Amendment was violated by a law that “prohibits the visual depiction of an idea,” Justice Anthony M. Kennedy said in the 2002 decision.

Justice Scalia said on Monday that by limiting the crime to the “pandering” of child pornography, the new law represented “a carefully crafted attempt to eliminate the First Amendment problems we identified” in the earlier decision.

The new law and the earlier one, the Child Pornography Prevention Act of 1996, were legislative efforts to deal with the challenge that technology poses to prosecutors if they must prove that material that looks like child pornography was actually produced using real children.

Under the court’s interpretation of the 2003 statute, a person offering material as child pornography can be convicted on either of two grounds: for believing that the material depicts real children, or for intending to convince a would-be recipient that it does.

Is the statute too broad?

The statute itself (“Protect” is an acronym for Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today) is open to a considerably broader interpretation, which led the federal appeals court in Atlanta to invalidate it in 2006, the decision that the justices overturned on Monday.

The law applies to “any person who knowingly advertises, promotes, presents, distributes, or solicits” the prohibited material, raising concerns about whether mainstream movies or innocent photographs of babies in the bath might invite prosecution.

The court said no:

Justice Scalia dismissed these concerns as “fanciful hypotheticals,” saying that such situations would either not give rise to prosecutions or, if they did, would be protected by the courts. In a concurring opinion, Justices John Paul Stevens and Stephen G. Breyer said they, too, were satisfied that the court’s narrow construction of the statute had allayed “any constitutional concerns that might arise.”

(4)
In the dissent:

The two dissenting justices, David H. Souter and Ruth Bader Ginsburg, said their concerns had not been answered. In an opinion by Justice Souter, which Justice Ginsburg signed, they said they did not object to making it a crime to mislead others by offering material that did not in fact exist. That was simply fraud, Justice Souter said.

However, he added, possession of pornographic images that do not depict real children is constitutionally protected, and offering them should not be a crime. “If the act can effectively eliminate the real-child requirement when a proposal relates to extant material, a class of protected speech will disappear,” Justice Souter said.

(5)
The opinion: US v Williams

John Yoo: Talk with Harry Kreisler

Posted in Anti-terrorism law (US), International Law, John Yoo, President's Authority, Torture by mrkooenglish on May 19, 2008

Conversations With History
Jan 2008

(60 min)

John Yoo, the law professor, discussed Presidential war powers. Professor Yoo analyzed the situation confronting the United States after the 911 attack and explained the development of the legal justifications for the Bush’s administration’s response. Topics addressed include the memorandum on torture, the interface between law and politics, secrecy and democracy, and the Bush legacy.

Sixth Circuit Denies Standing To Challenge Terrorist Surveillance Program

Harvard Law Review case summary (Issue 121, Jan 2008): ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007) (.pdf) (8 pages)

The Terrorist Surveillance Program (TSP) offers a conundrum for the courts and would-be challengers. Many experts have argued that the program was illegal on the grounds that it ignored the warrant requirement congress prescribed in the Foreign Intelligence Surveillance Act of 19781 (FISA) and that it might have violated the Fourth Amendment. But the state secrets doctrine has prevented potential plaintiffs from obtaining proof that they were among the group surveilled under the TSP.3 In a recent decision, ACLU v. NSA, the Sixth Circuit accordingly held that a group of plaintiffs lacked standing to challenge the TSP because they could not show that they personally were injured by it. The judges relied on a strict construction of standing for Fourth Amendment injuries, one developed in cases where plaintiffs sought to challenge individual searches of other people. In the context of secret surveillance programs by the government, the reality is that no plaintiff will be in a position to establish injury with anything approaching certainty. Hence, a more appropriate approach would be to allow standing where plaintiffs can show even a low level of probability they have been or will be among the injured.

Giving the constitution to the courts

Posted in Constitution of United States, judical supremacy by mrkooenglish on May 18, 2008

Jamal Greene’s book review (Yale Law Journal, Mar 2008): Keith Whittington, Political Foundations of judical supremacy (NJ: Princeton University Press, 2007)

Taking text too seriously

Posted in Amendment 9th, Justice Antonin Scalia, Justice Clarence Thomas, original meaning by mrkooenglish on May 18, 2008

William Michael Treanor wrote in the paper Taking text too seriously: Modern Textualism, original meaning, and the case of Amar’s Bill of Rights (Michigan Law Review, Issue 106, Dec 2007) (58 pages):

Championed on the Supreme Court by Justice Scalia and Justice Thomas and in academia most prominently by Professor Akhil Amar, textualism has emerged within the past twenty years as a leading school of constitutional interpretation. Textualists argue that the Constitution should be interpreted in accordance with its original public meaning, and in seeking that meaning, they closely parse the Constitution’s words and grammar and the placement of clauses in the document. They have assumed that this close parsing recaptures original meaning, but, perhaps because it seems obviously correct, that assumption has neither been defended nor challenged. This Article uses Professor Amar’s widely acclaimed masterpiece of the textualist movement, The Bill of Rights, as a case study to test the validity
of that assumption.

Amar’s work has profoundly influenced subsequent scholarship and case law with its argument that the creation of the Bill of Rights primarily reflected republican rights of “the people” rather than individual rights. This Article shows that Amar’s republican reading is incorrect and that his textualist interpretive approach repeatedly leads him astray. Amar incorrectly assumes that words have the same meaning throughout the document, assigns a significance to the placement of clauses that is belied by the drafting history, and incorrectly posits that the Bill of Rights reflects a unitary ideological vision. The textualist search for original public meaning cannot be squared with an interpretive approach that assumes that all word choices were made with a high degree of care, that the significance of location can be assessed simply by examining the four corners of the document, and that the Constitution must be understood holistically. Analysis of Professor Amar’s Bill of Rights indicates that, paradoxically, close reading is a poor guide to original meaning: rather, careful study of the drafting history is necessary to recapture any such understanding.

Ineffective Assistance of Counsel for Capital defendant

A leading case summery of Harvard Law Review: Schriro v. Landrigan (2007) (11 pages)

Sixth Amendment — Ineffective Assistance of Counsel

Capital defendants are not always cooperative or repentant, even at sentencing hearings determinative of their fates. Some death penalty defendants may refuse to aid in investigation of mitigating evidence, or they may actively obstruct presentation of it during the sentencing phase. Others may flaunt the purposeful nature of their killings, their lack of remorse, or their willingness to be put to death for their crimes. Courts must be aware, however, that this behavior may be due to mental illness or caused by physical and emotional abuse, a genetic disorder, or drug addiction — characteristics that may reduce a defendant’s moral culpability.

Last Term, in Schriro v. Landrigan, the Supreme Court upheld a state court’s finding that a defendant who refused to allow the presentation of mitigating evidence from his family members was not prejudiced by his counsel’s failure to investigate fully or to present other sorts of mitigating evidence. Thus, the Court held, the defendant was not entitled to an evidentiary hearing on the claim of ineffective assistance of counsel. The Court failed to analyze the context of Landrigan’s refusal, including unique concerns about particular mitigating evidence and the defendant’s background — factors that may have explained his statements and behavior. Moreover, the Court did not consider the defendant’s refusal in the context of its waiver precedents or the importance of mitigating evidence. Courts should not expand a limited refusal to present only some mitigating evidence into a complete refusal to present any mitigating evidence, nor should they allow recalcitrant behavior at sentencing to justify eradication of a defendant’s constitutional right to effective assistance of counsel.

Presumption of Reasonableness of Sentencing

A leading case summery of Harvard Law Review: Rita v. United States (2007) (11 pages)

Sixth Amendment — Federal Sentencing Guidelines — Presumption of Reasonableness

In United States v. Booker, the Supreme Court found that the Federal Sentencing Guidelines violated the Sixth Amendment. It held the Guidelines unconstitutional because they required judges to increase sentences above the level authorized by facts conceded by the defendant or found by a jury beyond a reasonable doubt. Its remedy — making the Guidelines advisory rather than mandatory and changing the standard of review on appeal to reasonableness — created a host of contested legal questions, including whether appellate courts could apply a presumption of reasonableness in reviewing sentences falling within the applicable Guidelines range.

Last Term, in Rita v. United States, the Supreme Court held that an appellate court could apply such a presumption. But by also articulating a weak standard for the requirement that a sentencing judge provide a statement of reasons for the penalty she imposes, the Court
undermined the rationale justifying the presumption. In so doing, i implicitly sanctioned lower court treatment of the Guidelines as de facto mandatory after Booker. To justify an appellate presumption founded on the exercise of independent trial-level judgment and to make real the constitutional promise of Booker, trial judges should be required to express in writing their precise reasons for choosing a particular sentence and rejecting any departures sought by the defendant. In January 2003, Victor Rita purchased a machine gun parts kit from InterOrdnance of America, Inc., the target of a Bureau of Alcohol, Tobacco, Firearms, and Explosives investigation. That October, Rita provided testimony before a grand jury that was contradicted by separate evidence. The government indicted Rita in the United States District Court for the District of North Carolina on various charges, including making false statements under oath to a federal grand jury. The jury convicted Rita on all counts.

Death Qualification Decisions

A leading case summery of Harvard Law Review (Issue 121, Nov 2007): Uttecht v. Brown (2007) (11 pages)

Sixth Amendment — Death Qualification Decisions

Endless review of death sentences is exhausting the courts. The legislative response to this problem can be seen in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which sharply limits federal habeas review of state court decisions. The judicial response is apparent in the Supreme Court’s increasing reluctance to reverse sentences for minor errors many years after their imposition.

The Justices’ frustration with the delaying tactics of capital defendants was on display last Term in Uttecht v. Brown, in which the Court reinstated a thirteen-year-old death sentence overturned by the Ninth Circuit. The Court held that the trial judge had not abused his discretion by striking a potential juror who expressed some hesitancy to impose a death sentence under the circumstances of the case and whose removal was not objected to by defense counsel. Brown should remind appellate judges of the high degree of deference afforded to trial court determinations, particularly under circumstances that suggest the trial judge may have been relying on his observation of an individual’s demeanor. But as Congress and the Court move to curb excessive review of death sentences, it is important that lower courts not mistake more lenient standards of review on appeal for less rigorous first-order standards. Brown did not alter the standard that trial judges must apply in deciding whether to exclude a juror for cause, which remains strongly tilted toward retention of all but the most biased veniremen.