West Law Report

Justice Stephen Breyer: Charlie Rose interview

Posted in Justice Stephen Breyer by mrkooenglish on June 25, 2008

Aug 2007

(59 min)

On his book Active Liberty: Interpreting our Democratic Constitution.

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Breyer, J. & O’Connor, J.: Charlie Rose interview

Posted in Justice Sandra Day O'Connor, Justice Stephen Breyer by mrkooenglish on June 25, 2008

Aug 2007


(57 min)

Justice Antonin Scalia: Charlie Rose interview

Posted in Justice Antonin Scalia by mrkooenglish on June 25, 2008

Jun 2008

(3 min)

On Bush v. Gore decision in 2000 and his influence among other Justices.

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.

Roberts v. the Future

Posted in Jeffrey Rosen, Justice John G. Roberts Jr by mrkooenglish on May 24, 2008

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(Photo: NY Times)

An interview of Chief Justice Robets in 2005 by the law professor Jeffrey Rosen. Required reading of the MIT course 17.245. And read his 49 opinions and his conservative philosophy.

The Next President and the Courts

Posted in John Yoo, Separation of power, US Supreme Court by mrkooenglish on May 21, 2008

An UC Berkely event
Feb 2008

(1 hr 30 min)

Panelist/Discussants:

  • Jesse Choper, Professor of Law, School of Law – Boalt Hall;
  • Susan Estrich, Professor of Law, USC Gould School of Law;
  • William K. Kelley, Associate Professor of Law, University of Notre Dame School of Law

Moderator:

  • John Yoo, Professor of Law, School of Law – Boalt Hall

“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].

Justice Breyer’s opinion on Stenberg v Carhart (2000)

Posted in abortion, Justice Stephen Breyer by mrkooenglish on May 21, 2008

A fan of Justice Breyer in Facebook:

I really admired your decision and explaination in the stenberg v. carhart case.

Should i be a fan too?

Sosa v. Alvarez Machain

Harvard Law Review leading case summary: Sosa v. Alvarez Machain (2004): (.pdf) (11 pages)

Controversy has surrounded the Alien Tort Statute (ATS) since the Second Circuit pulled it from centuries of obscurity in the landmark case of Filartiga v. Pena-Irala. The current debate within the judiciary and the acad-emy arises largely from the confluence of two great legal shifts during the twentieth century: the changed relationship between the federal courts and the common law since Erie Railroad Co. v. Tompkins, and the evolution of customary international law, particularly its increased attention to the rights and duties of individuals rather than of states.

Last Term, in Sosa v. Alvarez-Machain (2004), the Supreme Court entered the debate and held that the prohibition in customary international law against arbitrary detention was not defined specifically enough to allow a claim under the ATS. While the Court did decide that claims under recently developed norms of international law may indeed be ac-tionable under the ATS, Sosa failed to articulate a clear conception of the interaction between customary international law and domestic law, and offers little guidance to lower courts both within ATS doctrine and beyond.

Justices’ Conflicts Halt Apartheid Appeal

Posted in Alien Tort Claims Act, apartheid, US Supreme Court by mrkooenglish on May 19, 2008

(1)
NY Times reported that recusal of four justices in the case of South Africa Apartheid:

Financial and personal conflicts of interest affecting four Supreme Court justices left the court without a quorum last week and unable to decide whether to hear an appeal brought by more than 50 companies that did business in apartheid-era South Africa.

Is it usual for every such case?

(2)
And a brief:

The Alien Tort Statute, sometimes called the Alien Tort Claims Act, lay dormant for most of two centuries until it was rediscovered as a way to seek redress in United States courts for human rights violations committed overseas.

The Supreme Court, while not foreclosing the use of the statute for that purpose, has been notably skeptical. A footnote in a 2004 Supreme Court decision on an unrelated Alien Tort Statute case referred specifically to the South African lawsuit, noting that there was “a strong argument that federal courts should give serious weight to the executive branch’s view of the case’s impact on foreign policy.”

In its ruling last October allowing the case to proceed, the United States Court of Appeals for the Second Circuit, in New York, ordered the district court to consider defenses it had not previously addressed. These include whether the suit presents a “political question” that is beyond the institutional capacity of a federal court to resolve.

“A footnote in a 2004 Supreme Court decision”?

(3)
What case is it? Rasul v Bush (2004)? Sosa v Alvarez-Machain (2004)?

Justice Breyer: Justice for all

Posted in Jeffrey Toobin, Justice Stephen Breyer by mrkooenglish on May 19, 2008

Watched Toobin interviewed the Juctice (16 Oct 2006); read Toobin reviewed the Justice’s book, Active Liberty (31 Oct 2005).

Supremre Court Inc.

Posted in Jeffrey Rosen, US Supreme Court by mrkooenglish on May 19, 2008

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(Picture: Andy Friedman / NY Times)

Jeffrey Rosen, the law professor and author, wrote in NY Times magazine (16 Mar 2008) about the Supreme Court.