A Word on the "Mystery" of Justice Stevens' Change of Heart on the Death Penalty

In Sunday’s New York Times, Adam Liptak “settles [a] legal mystery:” how to explain Justice Stevens’ vote to reinstate the death penalty in 1976 and his shift in 2008, when he wrote that he believed the death penalty to be unconstitutional?  To the untrained eye, this might appear to be a puzzle indeed.  If the Constitution is but an unchanging legal document, and the Justices’ job is akin to legal archaeology, how to explain any change in legal doctrine, not to mention changes of heart among particular justices? 

Justice Stevens’ answer is uneventful: changes in the composition of the Court, coupled with what he labeled “regrettable judicial activism,” led to a system that is no longer constitutional.   In other words, a process that once could withstand constitutional scrutiny was irretrievably damaged by allowances made by the Court itself.  This is a process, Liptak writes, “shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.”

But clearly this is no mystery. 

Fuentes-Rohwer in the NY Times

Luis has an essay in the Times that you can find here.  The essay is about race and merit in college admissions.  Well done Luis.

WikiLeaks and Free Speech

Over at Slate Dahlia Lithwick wonders why the war on terror has not produced great free speech cases as had previous wars. I offer two thoughts.  First, as many others have observed, the war on terror is not like the other wars.  For whatever, we are not currently behaving like we are a country at war.  While the financial impact of the war is significant on the state fisc, few people are directly affected.  This war is more the national subconscious than in the national consciousness.

Second and maybe related to the first point, the free speech issues that are likely to arise in the context of the war on terror may not resemble the contexts of the past. Instead, they may be closer to the leaks of State Department cables by WikiLeaks.  We will see a First Amendment confrontation, if not sooner, when the government prosecutes WikiLeaks for publishing sensitive military intelligence regarding our involvement in Afghanistan, Iraq, or some other area. Already Representative Peter King is calling for the prosecution of WikiLeaks and its founder.  My guess is that what we're seeing is a new form of protest and one that is effective and dangerous to the State. Consequently, the clash between the First Amendment and the government is inevitable.

Where Are Thou, Judicial Activists?

The health care law is under heavy attack in federal courts across the country.  According to these attacks, Congress does not have the power under the Commerce Clause to demand that individuals buy their own health insurance.  This is the legal question, formally stated.  Put another way: how extensive and far-reaching are the power of Congress?

I could cobble together a bunch of cases and quotes to argue that the law is in fact unconstitutional.  But I could also argue otherwise.

That is to say: does anybody seriously think that these suits will be decided by formal law, not by political ideology or the judges' personal preferences?

Make no mistake, this is no different from the recent gun control rulings, Heller and City of Chicago, or the Citizens United case, or just about any other major case you can think of.  This is also how the upcoming showdown on the constitutionality of the Voting Rights Act will play out. The justices will paste together select quotes and cases that will inexorably lead them to their inevitable conclusion.  The law will make them do it.

In this vein, I would love to ask incoming House Speaker John Boehner and Senator Sessions what they think about the health care litigation.  I would also love to ask them, in turn, what they think about the upcoming challenge to the constitutionality of the VRA.   I would also love for them to explain what made Justice Thomas a judicial activist but not Justice Thomas or Scalia.

I would then love for them to explain to us all how they would reconcile these various decisions.

It is simply not possible. Not rationally, at least.

Some Senators Stall Judicial Nominee Because He Worked for ACLU

The L.A. Times editorializes plainly: "President Obama's nominations to the federal bench have been stalled by Republicans in continuation of a partisan feud that dates back, depending on who's counting, to the George W. Bush, Clinton or Reagan administrations. Three California nominees are emblematic of the problem. They were all approved by the Senate Judiciary Committee months ago and received stellar evaluations from the American Bar Assn., but it's possible they won't be confirmed by the Senate (or will be rejected, though that would be a travesty) before the 111th Congress winds down.

Two of the nominees are for the U.S. District Court, the labor-intensive front line of the federal judicial system. Both Edward M. Chen, nominated for the Northern District of California, and Kimberly Mueller, chosen for the Eastern District, are currently federal magistrate judges. Both were unanimously rated "well qualified" by an ABA panel. Chen was first approved by the Senate Judiciary Committee in October 2009; Mueller was approved in May of this year. No serious objections have been raised to either nomination, though some conservatives have complained, outrageously, about Chen's past affiliation with the American Civil Liberties Union.
The third candidate whose nomination has been languishing is UC Berkeley law professor Goodwin Liu, selected for a seat on the U.S. 9th Circuit Court of Appeals, which has jurisdiction over California and other Western states. Liu was approved by the Senate Judiciary Committee first in May and again this month after Obama resubmitted his nomination. He also was unanimously rated "well qualified" by the ABA panel."

Demographic Distribution of Clerkships

The National Jurist summarizes the latest National Association for Law Placement statistics on judicial clerkships:

The National Association for Law Placement has released demographic information on judicial clerkships throughout the country. In a November bulletin, NALP notes that over the past 10 years the total number of judicial clerkships obtained by law school graduates has decreased significantly, resulting in a shift in demographics.

Among the most notable news is the representation of women in the field. In 2009, women made up 46 percent of of graduating class and obtained 51 percent of all clerkships, including 54 percent of state positions and 54 percent of local clerkships. In 1999, women held only 4 percent more state positions than men, but that has since jumped to nearly 10 percent. Of the 51 percent of women in clerkships, 41 percent were white, 4.4 percent were African American, 3.4 percent were Asian and 2.1 were hispanic.

NALP's findings identified, however, that while women held more clerkships overall, men dominated the federal level, holding 54.3 percent of federal positions.

Among other findings from NALP, is a disproportionality of the number of minorities in the 2009 graduating class and the number of clerkships obtained. For example, while minorities made up 22 percent of the graduating class, they only obtained 16 percent of clerkships. Of those positions, most were in state positions, with only 13 percent on the federal level. Findings indicate a breakdown of African Americans in clerkships, as well. Keeping in mind the fact that the total number of clerkships has decreased significantly over the past decade, NALP noted that African-American/Black men hold about half of the positions that they held in 1999.

Asian Americans Live Longer than U.S. Average

The Wall Street Journal runs a fascinating story with surprising claims, based on a report by the Social Science Research Council:

Asian-Americans in New Jersey live longer, earn more and are better educated than other residents of the Garden State.
They have a life expectancy of 91.8 years in New Jersey, compared to 79.7 years for the state's general population, according to a study run by the Social Science Research Council, a New York City-based nonprofit. For the entire U.S., the average Asian-American lives 87.3 years.

Writing Supreme Court Opinions

I often ask my students why they think the U.S. Supreme Court hands down written opinions. The question traditionally comes on the heels of a maddeningly if unnecessarily complicated opinion, when the justices choose to join parts of a majority opinion but not others, choosing instead to concur in part or in the judgment. Just this past week, for example, during our discussion of Thornburg v. Gingles, we encountered the following:

BRENNAN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-A, III-B, IV-A, and V, in which WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined, an opinion with respect to Part III-C, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined, and an opinion with respect to Part IV-B, in which WHITE, J., joined. WHITE, J., filed a concurring opinion, post, p. ---. O'CONNOR, J., filed an opinion concurring in the judgment, in which BURGER, C.J., and POWELL and REHNQUIST, JJ., joined, post, p. ---. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and BLACKMUN, JJ., joined, post, p. --. 

In Gingles, the Court was assigned the task of interpreting the recent Amendments to Section 2 of the Voting Rights Act. Setting aside for the moment the question of interpretive philosophy, why did the Court feel compelled to issue an opinion totaling close to 25,000 words, and with so little agreement among the justices? In specific reference to constitutional cases, why doesn’t the Court simply announce its judgment and nothing more, that is, why doesn’t it simply tell us who wins and who loses and save the trouble of writing opinions?

The usual answer is the guidance rationale. That is, the Court writes opinions as a guide to the future, for lower courts, the relevant political actors, and the public at large. But according to Adam Liptak’s recent piece in the N.Y. Times, this is no longer a rationale that makes any sense, if it ever did. In Liptak’s words, “In decisions on questions great and small, the court often provides only limited or ambiguous guidance to lower courts. And it increasingly does so at enormous length.”

What, then, to make of the justices’ penchant for expressing themselves? That is, to put the question in a way that actually makes sense: who in the world are the justices’ talking to?

Congressman Rangel: Ending Sadly

I am saddened by the ignominious ending to Congressman Charles Rangel's career.  Stories such as this latest one on the NY Times seem like serial pre-obituaries of both the man and his career.  There's enough blame to go around here starting with Mr. Rangel himself. But that's not the point. I would hope that whatever one's partisan inclination, humanity compels a twinge of sadness for the inglorious ending to the career of a Vietnam war hero, founder of the Congressional Black Caucus, and an individual who has spent almost all of his life in the service of the public.