Showing posts from June, 2007

What Kind of Animal is Executive Privilege?

Various well-reasoned comments on my post yesterday challenged my suggestion that the courts might defer to the judgment of Congress that executive privilege should yield in any particular case on the ground that Congress, as a politically accountable body, may be better situated to balance the need to override the privilege and the executive's need for the privilege. If executive privilege is rooted in separation of powers, the objection goes, then deferring to Congress in such matters means that the fox guards the chicken coop. At the very least, the objection goes, there is no reason to prefer the judgment by Congress that the privilege should be overridden to the judgment of the President---who is also politically accountable---that it should not be overridden. I have two thoughts in response. First, I did not mean to say (nor, on re-reading what I wrote, did I actually say) that this alternative, defer-to-Congress, approach is actually right. I only raised it as a possibi

Unadulterating the Executive Power—The Roberts & Alito Factor

On Monday, the Court announced a decision that, for endangered species advocates in particular, put some very chilling handwriting on the wall. In National Association of Home Builders v. Defenders of Wildlife , the Court held that the Endangered Species Act requirement that all federal agencies “insure” their “actions” do not jeopardize the continued existence of a listed species operates where those actions are not governed by other laws having any mandatory “shalls” in them. Before you run screaming from this post, though, hear me out on why this is important even for those who wouldn’t cross the street to step on a snail darter. At issue was EPA’s decision to approve Arizona’s Clean Water Act permitting program under CWA § 402(b), a provision listing nine factors EPA must scrutinize in its decision. (Approving states in this context relegates the federal presence in that state to the margins and the water permitting in Arizona that hung in the balance will have real consequences

Does it Matter Who Challenges Executive Privilege?

In preparing for my radio gig yesterday , I puzzled over an interesting question (about which I was not asked): Is the argument for judicial intervention in cases involving a claim of executive privilege weaker or stronger when Congress (or a committee thereof) asks for the allegedly privileged info or when it is sought in the course of ordinary litigation? The conventional wisdom says that where Congress seeks the info, the courts are less likely to get involved, because, per the theory of checks and balances, Congress and the President can fight it out in the political arena. That conventional wisdom appears to draw support from U.S. v. Nixon , in which the Court emphasized rule-of-law values in saying that the President, like any other citizen, must comply with the regular orders of a criminal investigation--at least absent a specific showing that the President needs a shield. In Cheney v. U.S. District Court the Supreme Court did not technically adjudicate a claim of executive p

NPR All Things Considered Link

Follow this link and click "Listen" to hear me talking about executive privilege.

Meanwhile, back in the other two branches

I'll be on today's 4 pm (Eastern Time) segment of NPR 's All Things Considered talking about the White House's announcement today that it is asserting executive privilege in response to the House and Senate subpoenas regarding the Gonzales 8 Massacre. The show is live so I don't know exactly what I'll be asked. I'll post a link to the segment after it runs (unless I make a gigantic fool of myself, in which case I won't). Update: I undoubtedly had a few more "uhms" than when they edit me, but I probably wasn't a "gigantic" fool, and so will post audio (sometime this evening: NPR website says audio will be available around 7 pm).

The School Assignment Cases and Grutter

There are 185 pages, all told, in the opinions in today's school assignment cases; I have not read them all and don't want to make any unduly hasty judgments. But let me address one issue of particular interest to me. One question bruited about before the decisions came down was whether the Court, with its new composition, would eviscerate or overrule its recent decision in Grutter v. Bollinger, the University of Michigan Law School case. While I might modify my view upon a closer reading of the judgments as a whole, I think we can say that neither of these possibilities occurred. Grutter retains its vitality, for reasons that are important to larger projects I have discussed here, although it may be that those who thought that Grutter could apply in a variety of circumstances turned out to be wrong. The relevant discussion comes at pages 13-17 of the majority opinion. The majority notes that Grutter rested on "the interest in diversity in higher education." Bu

Finding the Silver Lining in Today's School Integration Cases

No doubt the bottom line and the opinion of CJ Roberts in the schools cases will get the lion's share of press attention, but the actual result is, in my view, not nearly as drastic as suggested by some of the rhetoric from that opinion (described by Thomas Healy here. ) But even the Roberts opinion itself leaves open the possibility that the Court would uphold an effort to achieve the educational benefits of racial diversity in public schools, if diversity were defined in terms of educational goals rather than in relation to the racial composition of the population. More importantly, Roberts does not have Kennedy's vote for rejecting combating racial isolation as a compelling interest. Kennedy, who casts the fifth and decisive vote and only joins part of the Roberts opinion, thinks it is a compelling interest. He rejects the plans as not narrowly tailored because he thinks the Louisville plan is too ill-defined and the Seattle plan too crude in its categorization of studen

Turning Brown Against Itself

As Mike anticipated in his earlier post, Chief Justice Roberts does indeed use Brown v. Board of Education to support the Court's ruling that the Seattle and Louisville integration plans are unconstitutional. "When it comes to using race to assign children to schools, history will be heard," Roberts writes. He then cites language from Brown II (the follow-up case to Brown in which the Court instructed school districts to desegregate "with all deliberate speed") that the equal protection clause requires school districts to "achieve a system of determining admission to the public schools on a nonracial basis." And if that wasn't enough to make Thurgood Marshall turn over in his grave, Roberts uses Marshall's own brief in Brown to support his opinion. Responding to the school districts' claim that their position is more faithful to the heritage of Brown , Roberts writes that "the position of the plaintiffs in Brown was spelled ou

Media Feeding Frenzy

About four seconds after Scotusblog reported the results in the school integration cases, but before the opinions were out, and before CJ Roberts had even finished reading from the bench, I received a call from a reporter asking for my reaction. She seemed surprised when I said that I'd like to read the opinions before commenting on them.

Supreme Court Overrules Brown v. Board???

The emerging theme of the Roberts Court is what I'll call disingenuous respect for precedent. In a number of key cases so far this Term, the Court has purported to follow earlier precedents while issuing rulings that are pretty hard to square with those rulings. The most recent example is Hein v. Freedom From Religion Foundation, Inc. , in which Justice Alito, for the Court, "distinguishes" the Flast case on the ground that taxpayer standing is permitted in Establishment Clause cases challenging legislative appropriation of funds but not executive expenditure of those funds. (Yeah, and the VP is not part of the executive branch.) The most egregious example is probably Gonzales v. Carhart , in which Justice Kennedy's opinion for the Court doesn't even go through the motions of explaining how the federal "partial birth" abortion ban's failure to include a health exception is okay when a Nebraska statute's wasn't. (He might have said that C

Why Do People Care Whether the Justices Like Each Other?

A story in yesterday's Washington Post accurately quoted me stating that the liberal Justices seem more frustrated than angry with their conservative colleagues, both because the liberals are losing a lot more cases this Term than in recent Terms (a consequence of the replacement of O'Connor with Alito) and because in a fair number of cases the conservative majority seems either to dismiss or ignore prima facie persuasive objections from the liberals. One of the main points of the story is that despite the ramped up professional pique, personal relations among the Justices remain harmonious. The story quotes Justice Alito and Georgetown law professor Richard Lazarus for this proposition, and I see no reason to doubt them. As I've noted before, Justice Breyer's standard stump speech explains that the Justices' disagreements are about the law but that they like and respect one another across ideological lines. To me the interesting question is why the media seem t

Cheney v. Chaudhry?

Vice President Cheney has been all over the news this week. First, Cheney made headlines for his claim that he need not comply with rules requiring all executive branch entities to report to an oversight office in the National Archives on how they handle classified information because the Office of the Vice President is not part of the "executive branch." Second, the Washington Post has been running a series of revealing stories this week on the dominant role that Cheney has played in the Bush administration across a range of issues. For more on all of that, have a look at what our colleagues Jack Balkin and Marty Lederman have to say over at Balkinization. Here, I simply wish to draw attention, in the context of this week's reports, to some of last week's Cheney-related news, which I suspect some folks may have missed -- namely, the apparently dominant role that Cheney’s office also has been playing in the Bush administration’s continued, seemingly unconditional

Bong Hits Follow-Up

For the next few years, at least in cases that don't activate Justice Kennedy's libertarian streak, the interesting disagreements on the Court will be intra-conservative. Justice Alito's strong rejection of Justice Thomas's view in Morse v. Frederick is a nice example. Until some time in the 1980s, conservatives were generally unfriendly to free speech claims. Then, responding to what they saw as liberal/left "political correctness," most conservatives embraced freedom of speech as a value. Justice Thomas reveals himself here to be a throwback to an earlier kind of conservative. To be sure, it's possible that Justice Thomas favors robust protection for free speech as a policy matter but fails to find it in the original understanding of the 14th Amendment. (Never mind his failure to pursue originalism when it comes to equal protection and even other free speech doctrines.) And it's also possible that Justice Thomas simply thinks schools are special, s

Bong Hits 4 Free Speech

Yesterday the Supreme Court handed down the "BONG HiTS 4 JESUS" case, Morse v. Frederick . The case involved a group of students who unfurled a banner that said "BONG HiTS 4 JESUS" as the Olympic Torch Relay passed through Juneau, Alaska, on its way to the winter games in Utah. The school had permitted staff and students to participate in the Torch Relay as a class trip. When the principal saw the banner, she demanded that it be taken down, ultimately confiscated it and suspended the one student who had refused her order, Joseph Frederick. The student brought a lawsuit against the principal and the schoolboard, claiming that they had violated his First Amendment rights and seeking declaratory and injunctive relief and damages. The trial court rejected Frederick's claims, the Ninth Circuit reversed, and the Supreme Court yesterday held that the school officials acted properly in restricting student speech at a school event when that speech could be viewed as

Sicko Part 3: Follow the Money

Among the more powerful scenes in Sicko is Moore's literal placement of price tags on the heads of Senators and Representatives (of both parties) reflecting how much money their campaigns have received from pharmaceutical companies, HMOs and other health care industry interests. Yet---spoiler alert!---the final scene shows Moore traipsing over to Congress to see whether he can get some action. Okay, technically he goes to ask them to do his laundry, but the viewer understands that this is really a call for the people to rise up to demand a fundamental change in our health care system. The underlying culprit, however, as Moore seems to realize, is our system of campaign finance. So long as well-heeled interests can legally "buy" support for their positions in Congress, little is likely to change. And today's Supreme Court decision in FEC v. Wisconsin Right to Life indicates that things will get worse before they get better. The ruling says that the First Amendmen

"Sicko" and the Clinton Health Care Plan

Like Mike (see his post from yesterday ), I thought that Michael Moore's new film "Sicko" was a fascinating and important piece of documentary film-making. The film is probably most important because it will almost certainly cause many people to stop limiting their thinking to what seems currently politically possible and to step back and ask Moore's bigger question: "Who are we?" Why have Americans accepted a situation in which not only do 1/6 of us have no health coverage at all but in which the rest of us glumly accept a completely broken system -- especially when that system demonstrably harms many people, and even more shockingly when a vastly better alternative is practiced in almost every modern country in the world? The fundamental complaint that everyone could level against the movie, no matter one's political viewpoint, is that it is clearly impossible to give all of the issues a decent airing in 2 hours. Everyone, I suspect, will leave the


The new Michael Moore film, Sicko , is (IMHO) terrific. No doubt it contains some inaccuracies and misleading cuts (like his other films) but its overall argument is irrefutable: There is something clearly wrong with our health-care system in light of the better outcomes achieved for less money by other industrialized (and even some not so industrialized) countries. Moore's film also has the virtue of unapologetically touting a single-payer system, rather than one of the satisficing hybrids currently being proposed by Democratic Presidential candidates (although those proposals are certainly better than the status quo). He rightly describes opposition to "socialized medicine" as simple red baiting. As a practical matter, those who note that our politics won't yet embrace a universal single payer system may be right, but that's no reason not to discuss it. The film's principal didactic flaw is its failure to explain why the U.S. system is such a disaster (a

Gitmo's Legacy

Rumors are once again circulating that the administration is planning/hoping to shut down the military prison at Guantanamo asap. Yesterday's NY Times story adverted to the further legal issues that would arise were that to happen: Detainees moved to locations clearly within the U.S. might thereby become entitled to greater constitutional protection (though no greater statutory protection, because the Military Commissions Act (MCA) of 2006 draws no distinctions based on where an alien is held); meanwhile, human rights issues would be raised by deporting/extraditing detainees to countries where they would face torture, etc. Here I'll very briefly raise a different question: What would be the long-term meaning of a decision to close Gitmo in the next few weeks or months? We might think that this would show just how weak our courts are in the face of a determined executive. After all, despite repeated losses in the courts, the administration will have succeeded in holding deta

Larger Law Faculties and the Hidden Cost in Hot Tubs

A recent National Law Journal article describes a trend of increased lateral movement among faculty at top law schools. The article does not actually cite any hard data for the proposition that there is such a trend. Instead, it quotes various faculty and deans about the number of moves and refers to Brian Leiter's blog . It certainly looks like there is a great deal of movement, but it would be useful to know whether, as a percentage of faculty size, there actually has been an increase in lateral movement in recent years, and if so, by how much. Whatever its exact scale, the NLJ article and Professor Leiter attribute a substantial portion of the increased lateral movement to deliberate faculty growth at Harvard and Columbia, and to the resulting trickle-down effect. Both Harvard and Columbia aim to increase their range of scholarly expertise and decrease their student/faculty ratios. As a Harvard alum and especially as a Columbia faculty member, such growth is of more than t

Do “Hate” Crimes Have to Involve Hatred?

Earlier this week, the New York Times ran a story about a case that is unfolding in the New York courts. Three men – Anthony Fortunato, John Fox, and Ilya Shurov – have been indicted for murder under the state Hate Crimes Act in connection with the killing of twenty-nine-year-old Michael Sandy. The three defendants allegedly entered a gay chat room to find a robbery target, selected Sandy in that chat room, and lured their prey into meeting with them at a deserted spot. They stand accused of subsequently beating Sandy and chasing him into traffic, where he sustained injuries that led to his death in the hospital. The defense is asking the judge who approved the indictment, Justice Jill Konviser-Levine, to dismiss the hate-crime-enhanced murder charges, on the ground that there is no evidence that the defendants hated gay people. The prosecution responds that unlike other states’ hate crime legislation, the New York Hate Crime law does not require hatred o

The Other Half of "Borking"; Or, With Friends Like These...

Over at the VC, Ilya Somin writes about what he would like to ask Robert Bork at an upcoming conference on Bork's work in which both Somin and the judge will be participating. Somin writes that he plans to ask Bork whether "his views on legal and/or political issues changed as a result of the ordeal he went through during his ultimately unsuccessful Supreme Court nomination process." In other words, was Bork radicalized by the scorching (and, in my view, often unfair) criticisms Bork received in the course of the nomination process? It's a good question, although I'd be surprised if the judge says anything terribly revealing in response. I think Somin should also consider the other half of the question, though: Did Bork's views change as a result of the support he received during the course of the confirmation process? In the wake of such controversies, people often consider the ways in which vehement criticism can alter one's views, usually by hard

Kafkaesque Jurisprudence

In my FindLaw column today , I describe the Supreme Court's treatment of the petitioner in Bowles v. Russell as almost literally Kafkaesque. I call attention to a scene in the penultimate chapter of The Trial, which includes an allegory that comes reasonably close to the treatment of Bowles. Nor does the connection appear to be entirely accidental. For a forthcoming book, my colleague Jack Greenberg and noted Kafka scholar Stanley Corngold have collected Kafka's work product as a lawyer (his day job), and have traced interesting connections between that work and his fiction. I am hardly the first person to complain about a Kafkaesque legal decision. A Westlaw search in all federal cases revealed 187 uses of the term by courts. But that only puts Kafka in at best fourth place for dystopic fiction writers by my calculation. Dickens does slightly better: discounting duplicates, the term "Dickensian" or "Bleak House" appears in 204 cases. George Orwell do

What Does the War on Hemp Have to Do with the Rule of Law?

In a Findlaw column today, I lay out the case for ending DEA’s war on cannabis sativa L. , the genus and species that makes pot and “industrial hemp” alike. One of the issues in the background of the column, but which I thought others might weigh in on here, is the relevance of agency rules that have been invalidated for procedural error. Because of a statutory exemption woven into US drug laws long ago, hemp stalks, sterile seeds, and other products of industrial hemp are excepted from the definition of "marijuana." Eventually, synthetic production of THC (the active ingredient in pot) was possible and Congress amended the drug statutes to prohibit THC expressly, but it left the prohibition of marijuana in place, including the hemp exemption. Recently, fearing who knows what, DEA took the position that the later amendment also banned all of the cannabis plant, since THC is present throughout. DEA originally issued an “interpretive rule,” followed immediately in the Fe

The Karl Rovification of the Supreme Court

As I noted last week ( here ), Tom Goldstein is projecting the current Supreme Court Term as VERY conservative ( here ). Jeff Toobin makes the same point in The New Yorker (available here , and while you're over at The New Yorker, check out Seymour Hersh's utterly frightening account of what happened to General Taguba for uncovering the truth about Abu Ghraib, but then come back to Dorf on Law). Here I'll tentatively observe something about the character of the 5-4 decisions we're seeing. Perhaps a close reading of all of this Term's cases wouldn't bear this out, but my subjective and informal impression is that when the Court splits 5 (Roberts/Scalia/Kennedy/Thomas/Alito) - 4 (Stevens/Souter/Ginsburg/Breyer), the 5 are basically ignoring or dismissing objections raised by the 4. Gonzales v. Carhart is a nice example. The dissenters were practically running around with their hair on fire saying that there was no way to reconcile the decision with the 2000

Shiny Happy Students

Law schools that emphasize teaching over scholarship are more likely to produce happy, well-adjusted students who get higher grades and do better on the bar exam. Or at least that’s the upshot of study published recently by professors Kennon Sheldon and Lawrence Krieger in the Personality and Social Psychology Bulletin. The study was based on evaluations of students at two schools with similar admissions profiles, yet different approaches to legal education. At school 1, faculty members are hired mainly on the basis of past and potential scholarly production, and scholarship plays a major role in compensation. School 2 places a greater emphasis on hiring faculty who have practiced law and are likely to be good teachers, and teaching ability counts as much as scholarship in setting salaries. In addition, school 2 provides teaching skills seminars for its faculty and has a more robust skills curriculum. According to the study, students at both schools experienced a marked decline in psy

Legal Wonders of the World

Our colleague, Diane Marie Amann , draws our attention to, and invites our nominations for, an interesting contest that she and her co-bloggers at IntLawGrrls are conducting to name the " Seven Legal Wonders of the World ." Here's Diane's description of the contest and its inspiration: A contest launched 6 years ago by the entrepreneurial New7Wonders Foundation has driven more than 4 million people to cast 28 million votes for humankind's 7 most wondrous feats of engineering or architecture (of the traditional 7 only 1, the Pyramids , is still in existence). You've got just 60 days left to choose among the 21 finalists, which range from Athens' Acropolis temple to Bavaria's Neuschwanstein castle, from the statue of Jesus in Rio to the Statute of Liberty in New York. If the spirit moves you, vote here . Or, help IntLawGrrls put together a different list -- of the World's 7 Legal Wonders. Post a comment or e-mail us at with

My NY Times Op-Ed on Begging

I have an Opinion piece on the NY State begging law in today's NY Times. It was solicited by one of the regional editors and thus doesn't appear in all the print editions. At least with respect to the editions in NY State that are not included, that's a bit ironic because the point of the op-ed is to decry the fact that the law could be valid in parts of the state but invalid in others.

Jeffrey Rosen on Justice Kennedy

The cover story of the New Republic (available here , although you have to register for free to read past the first page) is what can only be described as an attack on Justice Anthony Kennedy by Jeffrey Rosen. The tone and content are so over the top that one wonders whether Rosen believes that Kennedy personally harmed Rosen in some way. Rosen's brief against Kennedy amounts to the following: 1) Kennedy is the most activist of the current Justices in the sense that he votes to hold laws unconstitutional more often than any other; 2) Kennedy's writing style is florid; 3) Kennedy's conception of human psychology owes more to great works of literature than to interactions with real people; 4) Kennedy professes to care about dialogue but really only wants others, including schoolchildren, to hear what he has to say and agree; 5) Kennedy merely poses as an open-minded agonizer so that lawyers and his colleagues will come to him as supplicants; 6) Kennedy's form of moderat

Mars Needs Moms Redux

In an earlier post , I criticized the Berkeley Breathed children's story, Mars Needs Moms , for celebrating women's dedication to domestic drudgery. As I explained in the post, I based my remarks on an NPR interview in which Breathed spoke about the story of a boy whose mother is kidnapped by Martians. I had not read the book myself, and Breathed subsequently sent an email asking me to read it and to blog again after doing so. He generously sent me a copy of the book, which I have now read. The story is not exactly what I gathered from the NPR interview. At the end, (spoiler alert), the boy -- who had been wondering why everyone worships mothers and who had concluded that the Martians had wisely kidnapped his mother to perform domestic tasks -- faces a life-threatening situation, and his mother sacrifices her own life (at least seemingly) to save his. The lesson, then, is not -- as I previously thought -- that children should appreciate moms for the mind-numbing tasks that

Supreme Court Leaks?

So the Court didn't decide the voluntary integration cases today. The next date opinions come down is Monday, June 18. Perhaps then. Meanwhile, over at Scotusblog, Tom Goldstein has a very interesting post on how conservative a Term this is shaping up to be. Tom thinks that when all is said and done, Justice Kennedy will have broken right more often and in much more significant cases than he has broken left. That may be right, but meanwhile, I'd like to call attention to an interesting line in Tom's post. Discussing the voluntary integration cases, he states: "The consensus is that the Chief Justice is writing an opinion invalidating the school assignment programs." The consensus among whom? And how do they know? I highly doubt that Chief Justice Roberts himself has whispered this fact to the press, which leaves two possibilities: 1) Court-watchers have spun this theory from bits and pieces, such as the number of opinions the Chief has authored thus far, t

Headline: Supreme Court Overturns Brown v Board?

In my post on Tuesday , I suggested that sometimes you can predict the outcome of a Supreme Court case by asking what the headline will be in the major newspapers if it comes out one way or another. A reader rightly noted that the press often mischaracterizes the Court's work, for example, by treating certiorari denials as affirmances or by treating the decision to uphold a law as an endorsement of the policy behind the law. That's true, so I'll modify my earlier point to say that we want to know what a fairly accurate headline would say. Thus the question: If (perhaps as soon as later this morning), the Supreme Court invalidates the voluntary integration plans of Louisville and Seattle, will the headlines read (as a colleague of mine only half-jokingly suggested they might) "Supreme Court Overturns Brown v. Board?" And if so, how unfair a characterization would that be? Stay tuned.

Tony Soprano and Abu Ghraib

Like many fans of the Sopranos, I was disappointed by the closing scene of the final episode, to the point of wondering whether my DVR had malfunctioned. Upon reading some commentaries, I'm a bit mollified. The best interpretation I've seen goes like this: The camera moves where Tony's eyes go, and that means constantly watching the door and every stranger for a possible assassin, so that what should be a relaxed family meal at a local diner --- an opportunity to celebrate a return to some sort of normalcy --- is utterly ruined. Forever Tony will be looking over his shoulder. Thus we have a simple lesson that crime doesn't pay, brought home by seeing how it doesn't pay even for the crime boss. Yet, as with the Sopranos from start to finish --- although I'm one of those viewers who thought the show never quite repeated its greatest triumphs after Nancy Marchand (Livia Soprano) died --- things are more complicated. To the extent that we think Tony will survi

What's Good For Philip Morris isn't Necessarily Good for the USA

Every now and then the Supreme Court decides a case in which the right result is so blindingly obvious that you're left scratching your head as to how it got there in the first place. Yesterday's Supreme Court ruling in Watson v. Philip Morris is such a case. The federal removal statute provides for removal of state law cases from state to federal court where the defendant is the "United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, sued in an official or individual capacity for any act under color of such office . . . .” Philip Morris argued that it was a "person acting under" US officers because intensive regulation of the tobacco industry makes tobacco companies the agents of the U.S. Justice Breyer's unanimous opinion rejecting this bold-bordering-on-preposterous argument proceeds in 4 simple steps: 1) "the removal statute applies to private persons who lawfull