Christian Legal Society v. Martinez

The Supreme Court will hear oral arguments in Christian Legal Society v. Martinez on Monday. Hastings Law School denied funding to CLS, a student group, because it did not allow LGBT students as members. State law in California requires all student groups at public universities to allow any student to participate. So, in this case we see a clear conflict between free exercise (Hastings is a public school following state law so the necessary state action for a free exercise claim is in effect) aspects of religious equality and non-discrimination policy. It is a difficult case in many ways and raises substantial issues related to the things we have been discussing in both classes over the last 4-5 weeks.

Video from Federalist Society and American Constitution Society sponsored panel discussions on the case are here.

Oral arguments may appear at Oyez.

Abortion rights links

A couple of relevant links for the discussion of the abortion rights cases.

Data on abortion rates since 1974 from the Guttmacher Institute.

The new Nebraska law on abortion restrictions raises several issues that have not been addressed by the Supreme Court in any previous case, as well as several that are more similar to restrictions that have already been tested. We will discuss this new law in light of the precedents that we have been reading and see how the Court might decide the cases that are sure to emerge once the law goes into effect. According to the Times account the law bans "most abortions 20 weeks after conception or later on the theory that a fetus, by that stage in pregnancy, has the capacity to feel pain"

Another Nebraska law signed at the same time requires "health care providers to screen women seeking abortions for possible physical or mental risks."

Also see the report from ABC News.

Update: Amanda Marcotte has a good explanation of the new constitutional issues raised by the Nebraska law and some of the implications of these changes. Fetal pain, rather than viability, would be an entirely new consideration and one that fundamentally challenges Roe v Wade while opening up a great deal of space for states to impose new legal limits on abortion.

Supreme Court vacancy

So, per our discussion yesterday, I think this clip gives some sense of why representation on the Court matters regardless of the outcome of the cases. Read the language of the opinion in Gonzalez v Carhart and then watch Pamela Karlan comment on the case and imagine the conferences on the merits of future cases if she were to be nominated to the Court.

Free speech and terrorism in USSC

The Supreme Court heard oral arguments yesterday in Holder v. Humanitarian Law Project which is a case concerning Patriot Act provisions that make it illegal to provide expert advice to groups linked to terrorism.

That did not seem to satisfy Justice Ruth Bader Ginsburg. “So you can communicate, but the communications are censored,” Justice Ginsburg said. “You can be a member, you can attend meetings, you can discuss things, but there is a certain point at which the discussion must stop, right?”

Ms. Kagan responded, “The discussion must stop when you go over the line into giving valuable advice, training, support to these organizations.”

Ms. Kagan gave examples of prohibited conduct. A lawyer would commit a crime, she said, by filing a friend-of-the-court brief on behalf of a terrorist group. Helping such a group petition international bodies is also a crime, she added.

Justice John Paul Stevens asked if there was an authentic risk that Mr. Fertig would be prosecuted were he to make a presentation on behalf of the Kurdish group at the United Nations. He seemed to expect a negative answer.

But Ms. Kagan would say only that the matter would involve a “prosecutorial judgment.”

Chief Justice John G. Roberts Jr. said at least one part of the law, banning expert advice, seemed vague to him. “I don’t know sitting down that I could tell,” he said, whether advice about peaceful advocacy was covered.

I don't know if the oral arguments will be made available, but if they are you can find them at Oyez along with the summary of the case that they have already posted.

Public Opinion and the Supreme Court

So Citizens United was tremendously unpopular across the political spectrum. This is really interesting to me since people usually don't pay that much attention to the Supreme Court and rarely coalesce around opposition to a decision so quickly. Perhaps that says something about the Washington Post poll involved as well as the issue of corporate political speech, but off hand, these are the sorts of poll numbers you might expect on a case about flag burning, not campaign finance law.

Ellsberg at the Oscars

Daniel Ellsberg, a key figure in the Pentagon Papers case that we studied last week, is the subject of an Oscar nominated documentary. Here is a bit of information about what Ellsberg is up to these days and some of his favorite movies of the last year.

No cameras in Prop 8 trial

The US Supreme Court has blocked cameras for the Proposition 8 trial in California, overturning the decision by the Chief Judge of the 9th Circuit to allow those cameras.

Linda Greenhouse has an interesting column about the cameras issue both in the Prop 8 case and more generally, then turns to several other first amendment cases related to the politics of same-sex marriage. She concludes:

The issue of cameras in the courtroom, presented by the California case the court ruled on this week, is itself of long standing. But it has typically been seen as posing a free-press-versus-fair-trial question — in terms of First Amendment doctrine, a claim by those behind rather than in front of the camera. This week’s development suggests that a merger of two separate lines of First Amendment precedent, one on freedom from compelled disclosure and the other on access to government proceedings, may not be far off. In fact, in this media-saturated age, it may be overdue. Whether this deeply divided court can navigate the contested terrain of same-sex marriage to arrive at a useful synthesis is another question.

The column also has some gossip-y info about intrajudicial squabbling, check it out.

Right / Left cooperation on criminal justice reform

While the political rhetoric of "law and order" often separates liberals and conservatives, the question of the substantive effects of criminal procedure have always suggested room for common cause between liberal critics of police procedures and sentencing and conservative/libertarian concerns with expanding state power. Today's New York Times has an interesting piece previewing 6 upcoming Supreme Court cases that deal with criminal justice issues and includes many quotes from across the political spectrum advocating for significant reform in this area. This is all quite relevant to yesterday's class discussion of law and order and the questions we will discuss next week as well.

Stevens to retire?

Rumors abound that Justice Stevens may be planning to retire at the end of the new Supreme Court term. The gist of this rumor is that since Stevens has only hired one clerk for the 2010-11 term, and he would normally have hired all four clerks by now, that he must be planning to step down. Retired justices are allowed to hire one clerk. This all makes perfect sense, but when I googled "Justice Stevens retirement" I got pages of news stories and blog posts predicting his retirement going back at least as far as 2006, so I'd not read too much into the most current rumors. That said, many people predicted Justice Souter's retirement based on his not hiring clerks for this SC term.

A Bit of Borking in Progress

The Bork nomination is much talked about and comes up a number of times in our reading. For many commentators, this nomination was the beginning of a steady politicization of judicial nominations but as our reading shows, this is not the case. Nominations have always been political in nature. Nonetheless, the Bork nomination was quite combative and many key players are still around (such as Joe Biden). I wasn't able to find many clips from the Bork hearings but due to Kennedy's recent death, this famous interchange from the hearings was posted. The article which forms the basis for many of the criticisms Kennedy lists here is “Neutral Principles and Some First Amendment Problems” (47 INDIANA LAW JOURNAL 1971) which remains a frequently read and cited argument about not only the First Amendment but a wide range of constitutional rights and the reach of Supreme Court authority in interpreting privacy and other liberties. Bork spent much of the hearing trying to get out from under his arguments in this piece, suggesting that his thinking had changed or that the article no longer reflected his views on all issues. Bork is one of the best examples of a nominee who was considered well qualified but was successfully opposed on ideological grounds, including 6 republican votes against his confirmation.

Supreme Court confirmation hearings

We may take a look at several of these in class to help with our discussion, but they are all interesting and give a flavor for what these hearings look like.

My favorite, because it is funny, is listening to Justice Sotomayor explain nunchuks to Senator Hatch. This came up because she had ruled in favor of a state law regulating nunchuks and Senator Hatch was trying to get a sense of her stance on the Second Amendment.


In this clip, Senator Sessions asks about Sotomayor's statements regarding her life experiences and how they affect judging. Side note: Sessions was nominated to the federal bench by Ronald Reagan and was not confirmed by the then Republican majority Judiciary committee due to questions about, as journalists tend to put it, racial insensitivity in his conduct as a US Attorney.


And in this last clip, which cannot be embedded, we see Sotomayor's opening statement. There are many other clips available on youtube if you click over from any of these three.

Political Science and the 2008 election

Yesterday I complained that very few political scientists, the people who actually study nominations and confirmations, were invited onto television coverage of the Sotomayor hearings. Since not too many of you had watched that coverage, I thought another example of the same phenomenon would be helpful. During the 2008 election, we also saw very few political scientists interviewed about the campaign. This campaign, like all campaigns, was covered as a kind of breathless serial narrative on the 24 hour news cycle. Reporters expected us to believe that any given day's news was the crucial turning point in the election - that Obama's bitter Pennsylvanians "clinging to guns" comments would throw the election to McCain, or McCain's embarrassing "the fundamentals of the economy are strong" comment after Lehman Brothers collapsed was the end of his campaign. Coverage of the Palin pick swung both ways - first the press told us that she was generating so much excitement that Obama was doomed, then that her actual campaign trail performance cost him the election. In reality, none of these things probably affected the outcome of the election. Obama won 53% of the vote, *exactly* the average percentage predicted by political science models long before the election. In fact, if memory serves, pretty close to the percentage predicted before the nominees were even chosen.

What does the election have to do with Supreme Court nominations? This piece about the 2008 election by Gelman and Sides lays out pretty nicely the case for political science over pundit commentary that I was trying to make yesterday. What they say about the election pretty much covers Supreme Court nominations as well. That Sotomayor would be confirmed was a foregone conclusion from the moment she was nominated (barring some scandal coming to light) but we got months of excited hyperventilating press commentary (much of it from "experts" who didn't know squat) about whether she would or wouldn't confirmed.

Press coverage of major Supreme Court cases is often pretty good on the outcomes - reporters can count liberal and conservative justices just as well as anyone and predict votes. We'll look at some of this coverage during the term as the Court begins to hear oral arguments in October and can discuss whether they are covering the whole context of important cases as well as they should.

By the way, Gelman and Sides write the Monkey Cage political science blog - it focuses mostly on American politics (with a bit of baseball) but the issues they take up are interesting, and they present recent academic research in a very accessible way.