John Payton Visits W&M ACS

On November 12, over fifty students crowded into room 124 to hear John Payton, a partner at the D.C. law firm of Wilmer Hale. Payton’s talk was on the new races cases and the legacy of Brown v. Board of Education, and he led of by stating that he intended to be provocative.

In the two races cases from Louisville and Seattle, the Court held that the voluntary public school integration plans were unconstitutional. But, according to Payton, these decisions were about something larger. In handing down the opinions, Chief Justice Roberts ended his opinion with a flourish, by invoking the heritage of Brown: “no matter what positives, no use of race should be tolerated.” Roberts referred distinctly to the arguments by plaintiffs’ counsel in Brown, but, posed Payton, would plaintiffs’ counsel from Brown have agreed with the new chief justice? (more…)

Published in: on November 26, 2007 at 7:02 pm Comments Off on John Payton Visits W&M ACS

Food For Thought…

…and possibly an olive branch?

There was a big to-do in the Supreme Court on Wednesday as the Justices heard oral arguments in the Danforth v. Minnesota case. The issue in that case is, if the Supreme Court recognizes a new rule of criminal procedure and says it will not apply retroactively, whether state courts can decide that it shall apply in state post-conviction proceedings. It may be metaphysical, but one can only imagine the importance of the issue.

There are two reasons we should all agree that states can make new procedural rules retroactive even when the Court does not. The first is easy– federalism. It’s about power — how can the Supreme Court say that state courts do not have the power to make these new constitutional rules retroactive when those same states could at once adopt the rule as a matter of state constitutional interpretation and decide those rules are retroactive? And if a state court did adopt a retroactive version of a new procedural rule, as a matter of political authority there would be nothing the Supreme Court could do about it, short of deciding that some arbitrary clause of the Constitution (I’ll go with the Supremacy Clause) forbade states from interpreting their state constitutions except in conformity with the Supreme Court. Basically, it seems that to reach the conclusion that state courts can’t do this the Supreme Court has to forgo its “independent and adequate state grounds” doctrine. That is, the Constitution would at once be the minimum and the maximum of the rights available to the citizens of this country. That’s some strange concept of federalism.

Second, there is a more basic question of interpretive theory. Originalists deny that the meaning of the Constitution can change over time (referential meanings might be more flexible, but that’s not really the point). Those who believe in the “living Constitution” are less clear about it, but generally believe that for a Constitution to be legitimate it must bear some relation to the people it is meant to govern. Both theories want to be objectively true (or else this ongoing debate is a real waste) because if your theory is that the Constitution means whatever the balance of some subjectively derived set of values dictates then all of a sudden you are not talking about a Constitution, or even about law. Even the political-power theory of Constitutional meaning (that the Constitution means whatever its enforced, or enforceable, dictates happen to be at the time) would ground its theory in something like might-makes-right. So what would it mean for the Court to give up the ghost and just say that it is making bald faced policy and that as such its purpose is defeated by interference.


Published in: on November 8, 2007 at 9:33 am Comments Off on Food For Thought…
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Race and the Roberts Court: The Battle Over the Legacy of Brown

John Payton, a partner at the D.C. law firm WilmerHale, will be the featured ACS speaker next Monday, Nov. 12 from 1-2 p.m. in Room 124. Mr. Payton was lead counsel for the University of Michigan affirmative action cases Gratz and Grutter.

Mr. Payton’s talk is titled, “Race and the Roberts Court: The Battle Over the Legacy of Brown.”

Mr. Payton will be discussing the Supreme Court’s ruling last term, Parents Involved in Community Schools v. Seattle Community School District No. 1, which dealt with the voluntary desegregation of public schools in Seattle and Louisville, Kentucky. In a 5-4 decision, the Court held that the desegregation plans were not narrowly tailored to achieve the intended goal of diversity in public schools, with “conservatives” Roberts, Scalia, Alito, Thomas, and Kennedy prevailing over “liberals,” Souter, Stevens, Ginsberg, and Breyer.

Only four years ago, the Rehnquist Court heard the famous University of Michigan cases Gratz and Grutter, and upheld the consideration of race in university admissions, subject to certain limitations (such as consideration of the “whole student” and not only of the student’s race). In Grutter, Justice O’Connor, writing for the majority, stated that the Constitution “does not prohibit the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”


Published in: on November 7, 2007 at 5:20 pm Comments (2)

Granted Cert: Admissibility of Search Incident to Unlawful Arrest

Virginia law provides that an officer may not arrest someone detained for a misdemeanor, but must rather rely on a summons and release them. In this case David Moore was stopped on suspicion of driving on a suspended license, he was arrested, and in a subsequent search police found 16 grams of crack cocaine (an issue the Court will also take up this term, see here) and $516 in cash. A minority of state courts have held that when an arrest is unlawful under state law the exclusionary rule applies to bar any evidence resulting from the arrest and any incident search.

The underlying tension in this case is that the Fourth Amendment contains a standard of probable cause and reasonableness, while states like Virginia employ different standards in their courts. Some states argue that applying Fourth Amendment exclusionary principles on the (presumably) lesser standard provided by state law violates principles of federalism, and the idea that the Bill of Rights sets a baseline for protection. The obvious argument on the opposing side is that the Fourth Amendment exclusionary rule is not a constitutional rule at all, but a policy rule designed to prevent abuse — as such, it does not offend federalism to apply the policy in whatever context the states are free to construct.

Moore also argues that the whole search-incident-to-arrest itself is an exception to the prohibition against warrantless searches that was explicitly limited to lawful arrests. The problem with this argument is that the justification for such searches had more to do with officer safety than satisfaction of warrant requirements, and that the Court has every reason to decide this because this was an “exception” to a prudential (as opposed to constitutional) rule, it was not an exception at all but the limits of the exclusionary rule’s policy.


Published in: on September 25, 2007 at 11:12 pm Comments Off on Granted Cert: Admissibility of Search Incident to Unlawful Arrest

Massachusetts v. EPA

This is the case many have been waiting for. Massachusetts, along with many other petitioners, sued the EPA for failing to regulate carbon emissions, thereby putting the Massachusetts coastline at risk from the hazards of global warming. Massachusetts was countered by an equally impressive list of states and figures filing amicus briefs opposing its position. The case presented three very interesting questions. First, does Massachusetts have standing to sue the EPA for its alleged role in global warming? Second, does the EPA have the authority to regulate something as ubiquitous as carbon emissions under the Clean Air Act (CAA)? Finally, is the EPA in fact required to do so, its discretion as an agency notwithstanding? These are three very important questions that likely present the first of many dealing with global warming that courts will have to address. For those of you that want to skip the fun part, the answers are yes, yes, and yes. In what follows I will try to summarize the Court’s responses to paraphrased arguments on the side of the EPA.

The CAA provides that “The EPA Administrator shall, by regulation prescribe, (and from time to time revise) in accordance with the provisions of this section, standards applicable to the emission of any air pollutant from any class or classes of new motor vehicle or new motor vehicle engines, which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare ” The term “Air pollutant” is defined as “any air pollution agent or combination of such agents, including any physical, chemical, biological, radioactive  substance or matter which is emitted into or otherwise enters the ambient air.” “Welfare” is defined to include “effects on  weather  and climate.”

Justice Stevens, for the Court, begins by surveying the history of pollution research and regulation, noting that the wording of the statute was changed to address pollutants that were “reasonably foreseeable” to cause harm, rather than merely those actually determined to do so. In 2003 the EPA determined that it did not have the authority to regulate carbon emissions because Congress had declined to pass an amendment explicitly granting it that power, and because to do so would mean regulating vehicle emissions intruding on legislation Congress had already passed on the matter. It also concluded, citing a study concluding that a causal link between carbon emissions and global warming “[could not] be unequivocally established,” and more concerns about intruding on prior congressional legislation, that even if it did have the power it would be unwise to regulate emissions at that time.

The lower court found that petitioners, who alleged that global warming was “harmful to humanity at large,” had failed to allege the “particularized injuries” required for standing. Standing, you will recall, requires “actual or imminent injury” fairly traceable to the defendant and which a favorable decision by the court is likely to redress. However, Congress may grant a procedural right to protect concrete interests without requiring that those with this procedural right meet all the normal standards for redressability and immediacy (there is no argument that it did so here). (more…)

Published in: on April 7, 2007 at 5:26 pm Comments Off on Massachusetts v. EPA

Re-Cap: A Pretentious President or a Cavalier Congress?

On Wednesday April 4th in room 119 students gathered for the annual American Constitution Society/Federalist Society debate. The topic for this year was, “A Pretentious President or a Cavalier Congress?: The Separation of Powers During Wartime.” Representing the American Constitution Society was Neil Kinkopf, an associate professor of law at Georgia State University, and representing the Federalist Society was Michael Lewis, an assistant professor of law at Ohio Northern University.

Prof. Kinkopf opened the debate by discussing the two competing frameworks for understanding separation of powers conflicts. The first model was a model articulated by Justice Jackson in his concurrence in Youngstown Sheet & Tube Company v. Sawyer, also known as the steel seizure case, where President Truman issued an order to seize all American steel mills in order to prevent a strike. Jackson, in his concurrence, described three situations of presidential power and activity. The first was when the president acts with congressional authority. Here, the president’s power is the highest. Next, was when the president acts without congressional authority, contrary to the will of Congress. Here, the president’s power is lowest. The third is when the president acts and Congress has been silent. Here, the president claims an inherent power to act, and an analysis of that power is necessary. This is the framework used in cases like Hamdi and Hamdan.

The second model, according to Kinkopf, is that articulated by the Bush administration. In this model, categories two and three merge. The underlying theory is that all inherent power is preclusive power, and if the president has power, Congress can’t interfere. This is the approach used to justify the NSA wiretappings, and other similar actions.

Professor Lewis opened by going into detail regarding the Geneva Convention, as applied in the Hamdan case, as an example of how the Convention has been made excessively broad by the Supreme Court, far beyond the means it was originally intended. First, according to Lewis, we must determine what type of war we are engaged in under the Convention. In Hamdan, Justice Stevens recognizes that the conflict with Al Qaeda does not fall under the category of an Article II war, a typical war between two countries. As this isn’t an Article II war, the protections given to defendants are not Article II protections found under Protocol I, but rather, the protections are Article III protections given under Protocol II. To Lewis, this is important, because Article III protections are much fewer than Article II protections. However, the court in Hamdan ignored this distinction, claiming Hamdan wasn’t provided with adequate rights, rights he would only have been afforded under Article II and Protocol I. This then is just one example of how the laws are being stretched and warped to govern more than they were ever intended. (more…)

Published in: on at 1:18 pm Comments Off on Re-Cap: A Pretentious President or a Cavalier Congress?

Per Curium: A Windup for the Court on Standing

After Colorado’s legislature failed to pass a redistricting plan in 2000, its courts stepped in to do the job.  The Elections Clause of the Constitution provides that the “Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”  The State legislature finally passed a plan in 2003, but the State Attorney General challenged it under provision in Colorado’s Constitution that prohibits redistricting more than once every ten years.  The State Supreme Court agreed with the Attorney General, holding that the court’s redistricting plan was as binding as if it had been passed by the legislature.

In another per curium opinion last February the Court reversed an appellate court decision that courts of appeals cannot hear the case under the “Rooker-Feldman doctrine” which reserves final state court judgments for the Supreme Court unless “(1) ‘the party against whom the doctrine is invoked must have actually been a party to the prior state-court judgment or have been in privity with such a party’; (2) ‘the claim raised in the federal suit must have actually been raised or inextricably intertwined with the state-court judgment’; and (3) ‘the federal claim must not be parallel to the state-court claim.’”  The appeals court had ruled that the plaintiffs in this case were in privity with the parties in the state court judgment.  In that case the Court rejected the argument that the plaintiffs were in privity because “the outcome of the government’s litigation over a matter of public concern binds its citizens,” arguing that mistook the Rooker-Feldman doctrine for general preclusion rules.

In this case, the Court skips right over the preclusion issue, the primary basis for the lower court’s decision, and moves right on to standing, which a concurring justice addressed as an alternative reason for dismissal.


Published in: on March 30, 2007 at 2:46 pm Comments Off on Per Curium: A Windup for the Court on Standing

Invalidating California’s Sentencing Scheme: Reasonableness Alone Doesn’t Satisfy the Jury Requirement

Cunningham was convicted of continuous sexual abuse of a child under 14, which carries a 6 to 12 year sentence, or 16 years if accompanied by aggravating factors. His received the elevated sentence of 16 years under California’s Determinate Sentancing Law (DSL), which allows the trial judge (not the jury), by a preponderance of the evidence, to find facts justifying an elevated sentence.  Interestingly, the Appellate Court upheld the determination after striking one aggravation element, on the basis that with only one mitigating element, two aggravating elements were sufficient to justify an elevated sentence.  This case challenges that law under the Sixth Amendment right to a jury trial.

This case gets messy, and involves the details of the California and federal sentencing schemes, but it broadly reaffirms that only juries may find facts for which the defendant may be punished.  In case there was any confusion, California’s sentencing structure explicitly defines “aggravating circumstances,” used by a judge to enhance a sentence beyond the statutory maximum for the bare offense, as “facts.”


Published in: on March 1, 2007 at 5:20 pm Comments Off on Invalidating California’s Sentencing Scheme: Reasonableness Alone Doesn’t Satisfy the Jury Requirement

Philip Morris May Not Have Won Very Much

Despite what you may have read in the newspapers or heard on the radio, the recent Supreme Court decision may not have been much of a victory for Philip Morris. In fact, it is entirely possible that on retrial a jury would come to the very same conclusion

After his death, Jesse Williams’ widow sued Philip-Morris (makers of Williams’ favored brand of cigarettes) for negligence and deceit. A jury found that Williams smoked, in significant part, because he thought it was safe to do so, and awarded his widow $821,000 in compensatory damages and $79.5 million in punitive damages. Philip Morris objected to the denial of one if its jury instructions, which read:

(1) The size of any punishment should bear a reasonable relationship to the harm caused to Jesse Williams by the defendant’s punishable misconduct. Although you may consider the extent of harm suffered by others in determining what that reasonable relationship is, you are not to punish the defendant for the impact of its alleged misconduct on other persons, who may bring lawsuits of their own in which other juries can resolve their claims and award punitive damages for those harms, as such other juries see fit.

Under BMW of North America, Inc. v. Gore (1996) punitive damages may be based on (1) the “reprehensibility” of the defendant’s conduct, (2) a “reasonable relationship” to the actual or potential harm suffered by the plaintiff or related, and (3) the presence or absence of sanctions provided in law for comparable conduct. Essentially, in this case, Philip Morris argued that harm to third parties not in court could only be used to determine the “reasonable relationship between the misconduct” and the plaintiff. The Oregon Supreme Court held that harm to third parties may be used to calculate reprehensibility, and thereby to calculate punitive damages as a whole, so long as “dissimilar” acts of the defendant were not lumped together. The Court, here, splits the difference and holds that third party damages may be used to calculate reprehensibility, but that punitive damages may not be used to “directly” punish the defendant for the harm done to third parties. The only practical guidance the Court offers in terms of implementation is that courts “cannot authorize procedures that create an unreasonable and unnecessary risk of any such confusion occurring.”

Justice Stevens dissents, arguing that there was no suggestion that the jury was trying to compensate third parties, and that reflecting third party damages in the award by way of reprehensibility is no different than to do so “directly.” Justices Ginsburg, Scalia, and Thomas would hold only that the Oregon Court rightly rejected the jury instruction as ambiguous, and indicate that they agree with Stevens that so long as juries are not trying to compensate third parties, third party damages may be used to calculate punitive damages.

Justice Thomas, ever the negative Nancy, simply does not believe in substantive Due Process limits on punitive damage awards.


Published in: on February 22, 2007 at 4:13 pm Comments Off on Philip Morris May Not Have Won Very Much

Canon of Constitutional Avoidance? Why??

We learn in law school that courts have constructed an internal policy to avoid issuing decrees on Constitutional issues whenever there is an opportunity for them to do so. This policy extends from a county traffic court all the way up to the U.S. Supreme Court.

We can understand that it is perhaps not a good idea for the traffic court to issue a ruling on whether your speeding ticket violates the First Amendment. But the Supreme Court? We have been instructed since grade school that their entire job is to interpret the Constitution! Why then, would they appear to avoid being up to the task?

This is not to say that the nation’s highest court has never thrown its weight around. Throughout history there have been famous cases: Marbury v. Madison, Brown v. Board of Education, Roe v. Wade (to name a few that EVERYONE knows); these cases were decided on Constitutional grounds, and the strength of these grounds will be the subject of scholarly debate for years to come. Countless other cases have been decided on Constitutional grounds. Yet there are some issues that seem destined to go undecided throughout the ages.

For example, just last night the court-martial of Lt. Watada, the officer who was arrested for criticizing the Iraq War and failing to show for duty, ended in mistrial. But not before the military court determined that it would not allow his defense that the war was illegal. Fair enough; perhaps it is not the place of a military court (which is not even established under Article III of the Constitution) to rule on a Constitutional issue. In which case Watada would have lost, and the case would have been appealed to a court that did have such jurisdiction, perhaps all the way to the Supreme Court itself, which nobody disputes has the authority to determine whether or not the fighting in Iraq—and any conflict where troops are committed under similar circumstances—fits the Constitutional, and thus legal, definition of “war.” Unfortunately, the only real question at this point would be how the Supreme Court will evade this issue once again. Make no mistake: the case of Lt. Watada is just one in a long line of legal challenges to a war that was never formally declared, and all of them ended with the Supreme Court dismissing them on a technicality such as lack of standing or lack of ripeness. Because the Supreme Court’s decisions have the power to set precedent, the summation of all of these cases creates a legal quagmire that is so convoluted that it does not look like any single fact pattern would force the court to hear the case! Of course, good lawyers are paid to identify and distinguish exactly such situations, but given the long and dismal history, the odds that this will be the one are not enlightening.


Published in: on February 8, 2007 at 2:05 pm Comments (1)