Name That Tune

Many instructors will use music as a way to start a class session.  A short musical piece, played just before or right at the start of the lecture period, can be an effective means of relaxing students prior to the start of class.  And a relaxed student is one that is more open to the learning experience.

One other way that music can be used for teaching (or learning, for that matter)  is to set up a theme or point that might be explored during the lecture, or to use as a kind of mnemonic device for studying.   I’ve used music in this way during my constitutional law course.  Recently, Prof. Kevin McGuire (U of North Carolina- Chapel Hill) offered a link to his web page exploring linkages between the members of the Supreme Court and rock music:  http://mcguire.web.unc.edu/supreme-court-of-rock-and-roll/ .  In that vein, I offer a partial list of songs that I think are useful and fun for constitutional law.

“Signed, Sealed, Delivered” by Stevie Wonder—Marbury v. Madison (This was actually suggested by a student—I also like “Mr. Postman” by the Marvelettes; alternate version by the Beatles)

“When I’m 64” by the Beatles—Steward Machine v. Davis

“Freight Train” by Elizabeth Cotten or any number of folks singers—discussion of the evolution of the Commerce Clause post-Civil War and the role of railroads in that expansion

“Bread and Roses” by Judy Collins or other folk singers for Muller v. Oregon

“You’ve Got a Friend” by Carole King (also version by James Taylor) for discussion of West Coast Hotel v. Parrish (the switch in time that saved nine)

“Love Potion Number 9” by the Searchers for NFIB v. Sebelius

“Don’t Stop Believin’” by Journey, for the reemergence of the expansive commerce clause interpretation in Garcia v. SAMTA

“Purple Haze” by Jimi Hendrix for Gonzalez v. Raich

I think you get the idea.  There are lots of ways to spin this and lots more songs to be used (certainly, more recent songs, but with so many covers of older pop songs, they can still work for today’s students).   And it’s a nice way to set a tone for class.

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Examples of Internal Constraints and Extralegal Influences

As we wrap up our blog for this academic year and many of us who teach constitutional law turn our attention to our summer research agendas, I again write to bring judicial politics back to constitutional law. Two different stories, one from USA Today and one from Concurring Opinions remind us that judicial politics is interconnected to constitutional law.

USA Today discusses the potential influence of external events on two US Supreme Court’s decisions still to come. The first is Association for Molecular Pathology v. Myriad Genetics (No. 12-398). The case asked whether anyone could patent human genes. Myriad Genetics tried to patent two genes; mutations in these genes are important indicators of breast and ovarian cancer in women. Myriad argued that isolating genes is a process that deserves a patent, but a patent would limit the ability of other scientists, pharmaceutical companies, or other researchers to work with the genes and develop alternative tests or treatments. Enter Angelina Jolie, academy award winner and female action star. It was recently reported that Jolie took Myriad’s test, found that she had a mutation, and then underwent a double mastectomy. The aforementioned story in USA today notes the potential for this high profile celebrity story on the test and its costs ($4,000) may further highlight the implications of a ruling for Myriad—most women would be unable to afford the same test. Additionally, the story about Jolie, as USA Today put it, “sent Myriad’s stock soaring…”

The same story discusses the potential impact of recent decisions by several states to accept same sex marriage. The purported change in the trend toward greater acceptance could, if the justices interpret the “polling of jurisdictions” to be heading in the liberal direction, sway the justices in the Perry and Windsor. Alternatively, the remaining states, 38, that still ban same sex marriage could support a decision in the conservative direction. Either way, the decision of the various states is reported as potentially impacting Supreme Court decision-making.

Extralegal influences, such as publicity or state policy changes, are always present and can influence decision-making. Similarly, there are internal constraints or norms that also influence appellate decision-making and the blog Concurring Opinions provided an excellent example of these constraints on the same day as USA Today highlighted the extralegal factors. As reported, Judge David Tatel gave a speech at a ceremony unveiling and hanging a portrait of Judge David Sentelle. The post notes that the two judges sit, ideologically speaking, at different ends of the spectrum. Yet, the judges agreed on decisions most of the time (97%). In the speech, Tatel notes that “despite our best efforts at neutrality, we cannot but see the world—and the law—through the lens of who we are…” Yet, the D.C. Circuit has a norm of collegiality that helped yield an astounding agreement rate of two judges that, barring this norm, would likely not see eye to eye.

Together these examples highlight the complexity of explaining judicial decision-making and the parsimony of any of our models of that behavior. It’s not all attitudes, strategy, or the law. As we head toward the end of the term, it will be interesting to see if Jolie or Minnesota influence the justices, or not.

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The Scorecard and the Ninth Circuit

In the past few years a great deal of attention has been lavished on the Supreme Court treatment of the Ninth Circuit.  Articles with titles like “U.S. Supreme Court again rejects most decisions by the U.S. 9th Circuit Court of Appeals”  or “Take a Hint? Supreme Court Rejects 5 Rulings in a Row from West Coast Bench.”   There is a blog called the 9th Circuit Watch  and on its front page it details the reversal rate of the 9th over the past few Supreme Court terms.  Many of these articles are from 2011, but reputations have lasting effects.  As the ‘most liberal’ circuit in the federal system, it is an easy target for such scrutiny.  As the largest circuit in the federal system, it is an easy target for such scrutiny.  But is such scrutiny deserved?

SCOTUSblog has just released a partial Statpack  for the October 2012 term.  As expected the 9th Circuit tops the Court of Appeals for number of cases docketed and decided thus far—12 cases docketed and 7 decided already.  And the affirmation rate is not high—14%.  So, it seems that the 9th Circuit is still living up to its reputation for ‘getting it wrong’.  However, the 3rd Circuit, with 6 cases docketed and 4 already decided, has faired worse.  Its reversal rate is 100%.  The 11th circuit (6 cases docketed and 3 decided), the 5th Circuit (7 docketed; 2 decided), and the 7th (3 docketed; 2 decided) all have 100% reversal rates thus far.  In fact, only the D.C. Circuit (3 docketed; 2 decided) and the 4th Circuit (5 docketed; 3 decided) have a batting average of 500 or better.  Overall, the reversal rate thus far is 74%.  While the 9th will likely remain the media’s favorite whipping circuit, the overall data reveal that the 9th is really not very different from its brethren and the Court, with its small docket of 74 cases for the year, is still practicing the error correction strategy.

As we close out the Spring term and start concluding our constitutional law courses, its important to remember the lessons from the start of the term as well.  In Chapter 1, Epstein and Walker introduce students to judicial politics—the study of judicial behavior.  Perhaps now is a good time to come full circle and remind students that the behaviors noted are in evidence today.  The Court has issued unanimous decisions in 56% of its cases.  Since the “more difficult” cases are often left to the end of the term, its likely that this number will be reduced and hit closer to the norm, between 35 and 45%.  Not surprising, our swing justice, Justice Kennedy, has yet to write a dissenting opinion this term.  So far, the Chief Justice has authored 5 opinions and all have been 9-0—perhaps revealing the secondary desire for the Chief Justice to maintain a solid Court whenever possible.  And the workload of majority opinions is following the norms of equal work thus far as well.  Roberts tops the list with 5 opinions and Alito and Kennedy are at the bottom with 3.  What we know about the Court still holds and as our students finish up their constitutional law courses for the year, these lessons as well as the case law, will help them understand and follow the Court and its work without our assistance.

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Science and the 6th Amendment

As reported by the Ottawa Citizen, a trial judge, applying a Canadian Supreme Court ruling, ordered a devout Muslim woman to testify in court without her niqab.[1]  She is testifying against men she accuses of sexual abuse while she was a minor.  Her religion dictates that she wears her niqab when facing men who are not relatives.  Below is a graphic from the BBC illustrating two types of Muslim face coverings.[2]

 

 niqab Conservative choice

The niqab is a veil for the face that leaves the area around the eyes clear. However, it may be worn with a separate eye veil. It is worn with an accompanying headscarf.

The burka is the most concealing of all Islamic veils. It covers the entire face and body, leaving just a mesh screen to see through.

There have been attempts to ban both the niqab and burka in some European countries.

 

 

This trial clearly pits the right to confront witnesses and the right to a fair trial against the free exercise of religion.  In Canada, the Supreme Court determined that this issue must be addressed on a case-by-case basis:

 

“A clear rule that would always, or one that would never, permit a witness to wear the niqab while testifying cannot be sustained.  Always permitting a witness to wear the niqab would offer no protection for the accused’s fair trial interest and the state’s interest in maintaining public confidence in the administration of justice.  However, never permitting a witness to testify wearing a niqab would not comport with the fundamental premise underlying the Charter that rights should be limited only to the extent that the limits are shown to be justifiable.  The need to accommodate and balance sincerely held religious beliefs against other interests is deeply entrenched in Canadian law.”[3]

 

Essentially, the Canadian Supreme Court set out a four-prong test for lower court judges to use when determining if the niqab interferes with the trial.  As summarized by the CBC, the prongs are:

  • Does she have a sincere belief in her religion?
  • Does wearing a veil create a serious risk to trial fairness?
  • Is there any other way to accommodate her?
  • If no, does what the court called the “salutary” effects of ordering her to remove her niqab outweigh the “deleterious” effects of doing that?[4]

The trial judge applied the test in the remanded case and found in favor of the rights of the accused.  Normally, in Canada or the U.S. this would be the end of the issue and either N.S. would testify without her niqab or the trial would not move forward.  But her lawyer is trying another tactic and using recent scientific evidence calling into question the ability of individuals to discern anything reliably from facial expressions.  This argument is similar to the argument regarding eyewitness testimony and line-ups.[5]  Simply put, humans are not good at remembering facts and faces, we are influenced by context, and we are poor judges of truth despite what we see on “The Mentalist”.[6]

Does this evidence tip the balance?  Would jurors be better judges of truth without seeing facial expressions or posture during testimony?  Are these scientific findings enough to say that due process if fulfilled even if a witness wears a niqab or burka?  And how does this balance with the right to confront accusers? In 1985, the U.S. Supreme Court said:

This Court’s Confrontation Clause cases fall into two broad categories: cases involving the admission of out-of-court statements and cases involving restrictions imposed by law or by the trial court on the scope of cross-examination…

The second category of cases is exemplified by Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 1111, 39 L.Ed.2d 347 (1974), in which, although some cross-examination of a prosecution witness was allowed, the trial court did not permit defense counsel to “expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.” As the Court stated in Davis, supra, at 315, 94 S.Ct., at 1110, “confrontation means more than being allowed to confront the witness physically.” Consequently, in Davis, as in other cases involving trial court restrictions on the scope of cross-examination, the Court has recognized that Confrontation Clause questions will arise because such restrictions may “effectively . . . emasculate the right of cross-examination itself.” Smith v. Illinois, 390 U.S. 129, 131, 88 S.Ct. 748, 750, 19 L.Ed.2d 956 (1968).[7]

Yet, this opinion does not address N.S.’s new argument.  What if the fallibility or emasculation lies with the jurors?  If jurors gain nothing from observing the witness or, perhaps worse make erroneous or unreliable conclusions based upon observing the witness, where does that leave the right to confront?  If evidence continues to mount—creating a nearly irrefutable Brandeis brief—free exercise would likely trump the right to confront.  But in the end, this same analysis would call into question the rationale for including that latter right in the Bill of Rights.

We have seen the Court reinterpret or alter the interpretation of these amendments over the course of our history, but we have not yet dealt with the increase of knowledge undermining the very rationale for an amendment.  In such a situation, what should the Court do?  Stick to avowed legal approaches and continue to interpret this clause fairly literally?  Or can they use founders intent and suggest that the amendment does not do what the founders intended—indeed it may undermine that intent—so we move away from a strict reading of the clause?  Its an interesting conundrum, especially for justices like Scalia who aver originalism.

 


[1] We wrote about the oral argument in this case back in 2011 (http://clcablog.wordpress.com/2011/12/15/battle-of-the-amendments-sixth-versus-first/).  Here we discussed if the Supreme Court, when it faces this issues because its bound to come up in the U.S., would use the Sherbert or the Employment Division v. Smith test.

[7] Delaware v. Fensterer (474 US 15).

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An Unusual Lobbying Campaign

Yesterday, veteran Court reporter Tony Mauro wrote about a lobbying effort headed by Professor Peter Irons to cleanse the reputation of the Supreme Court resulting from the Korematsu ruling.  As political scientists, we know about the usual efforts to lobby the courts.  Interest groups bring test cases, though this strategy is actually quite rare, take over cases as they climb the appellate court ladder, write amicus briefs to sway the justices, and publish or support law review articles to introduce new ideas or concepts to the legal lexicon.

Irons sent each of the justices an article that presents why the Court should repudiate its 1944 decision.  The basis of Iron’s argument is not that history reveals that the Court decision was wrong, but rather that vital facts were purposely kept from the justices—facts that likely would have altered the outcome of the case. A 2011 statement of the Solicitor General’s office, as Mauro reports, significantly bolsters Irons’s argument.  In this blog post,[1] then acting SG Neal Katyal outlines the purposeful withholding of information by his office.[2]  Mauro also reports that most of the justices have made their stance on this case clear: Korematsu was wrongly decided.  The executive and legislative branches have come to the same conclusion; Irons argues that it is now time for the judicial branch to do likewise formally.

How would the Court follow Irons’s advice?  Mauro reports on a rare practice of “correcting factual errors.”  Essentially, Irons is asking the justice to correct the factual errors then repudiate Korematsu without having an additional case that serves to overturn the decision.  How could the Court do this?  Professor Irons argues that both reversal and repudiation of earlier decisions are not defined by the Supreme Court rules.[3]  Therefore, the justices can consider the evidence from the coram nobis hearings and the Solicitor General’s statement to correct the facts and note that the decision would have been different had this information come to light.  He also argues that any invidious discrimination case can be used to reverse formally the internment decisions.  “The fact that the Court has never before issued such a “repudiation” statement is no bar to the authority of the Justices to take such an action.[4]

Professor Irons makes a good argument and I wholeheartedly agree that the Japanese internment decisions need to be reversed and repudiated.[5]   However, I do not agree that there is no bar to action he requests.  The evidence here is overwhelming, but there are good reasons to embrace historical precedent. One clear consideration is the current political climate.  Like it or not, repudiating this decision creates a new avenue for lobbying the Court.  How long would it be before other groups use additional facts—facts “ignored” by the government—to petition the justices to re-evaluate precedent setting decisions.  The Court might like to take this step for the internment cases and note the extraordinary circumstances, but as with Bush v. Gore the Court can claim that the case won’t be used a precedent, it cannot prevent litigants from finding other uses or cases for the procedure.

Imagine the Court does repudiate the internment cases.  How long will it be before the next request comes?  And, can we hazard a guess what cases will be first on the “need to repudiate” list?

 


[2] It is interesting that the SG’s office makes this statement in May of 2011 and the cornam nobis decision of 1983 (vacating Korematsu’s wrongful conviction) was based on the same evidence.  Professor Irons represented Korematsu in this case.

[3] Peter Irons, The Case for Repudiation, a publication of the Earl Warren Bill of Rights Project, University of California, San Diego, 2013 at 26.

[4] Ibid.

[5] Some years ago, the authors of this blog viewed a Smithsonian exhibit about the internment camps.  One of the most disturbing parts of the exhibit was a section that compared US and Nazi propaganda (How to tell a Jew/Japanese type of literature).  The similarities were striking.

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Judicial Elections and Equal Protection?

In the forthcoming issue of Judicature, there is a symposium on James L. Gibson’s new book, Electing Judges: The Surprising Effects of Campaigning on Judicial Legitimacy.[1]  The commentators, Sara Benesh, Robert Hume, Matt Streb, and Lee Epstein, all sing the praises of Gibson’s latest work and discuss a number of issues regarding judicial elections and relate them to his findings.  Interestingly, both Epstein and Streb wonder about a potential equal protection problem.  I find their concerns intriguing from the standpoint of constitutional law and judicial politics.

Essentially, the argument stems from research revealing a tendency for elected judges to vote more harshly in some areas than others (the death penalty is the most cited and obvious case) and to vote more or less harshly depending on where in the electoral cycle the case is inserted.  Gibson finds these arguments specious; judges will make different decisions and no one is guaranteed the same outcome for the same crime in the district.  Two judges will likely handle the matter differently.  Additionally, there are many reasons why a judge might be harsher on some crimes or defendants at one point in time than another.  After a series of particularly violent crimes or high profile thefts, a judge might sentence defendants convicted of similar crimes differently to set an example.

Gibson is correct that there are infinite reasons why different judges may behave differently or the same judge may behave dissimilarly at different points in time.  The issue or concern is more than judges behaving differently or a judge reacting to the political context surrounding a crime or string of crimes.  I am sure after the massive Enron fraud or the Madoff ponzi scheme was uncovered and the damages to individuals made headlines, many judges were a bit harder when sentencing similar defendants.  I am also sure no one would quibble with such a discrepancy in judicial behavior—all of our decisions are affected by context.  However, a systematic and predictable pattern of changes in judicial decision-making related to the timing of elections may be a horse of a different color.  If judges make calculated choices to treat similar defendants differently simply because the case happens to appear on their docket two months prior, rather than two months after, their next election, the reaction is one of self-interest.  Altering behavior because an external stimulus forces a re-evaluation of values—for judges and layfolk alike—is not the same as calculating an abrupt shift simply because of an upcoming retention or general election.  The election stimulus is unrelated to the facts of the case or the crime committed unlike a high profile scandal revealing a need for stricter sentencing. Such behavior is expected among other elected politicians—legislators or executive branch officials, but as Gibson’s new book and the symposium highlight, the judicial branch must be concerned with its legitimacy, perceptions of fairness, and due process.[2]  To the extent that judges behave like politicians, they could undermine the strength of public perceptions of legitimacy and fairness,

Even so, is the finding that there is a cycle of decision-making related to electoral necessity grounds for claiming either a due process or equal protection violation?  The trial doesn’t change and the institutional and constitutional rules still apply.  The sentence, albeit harsher, is not necessarily out of the bounds of regular practice.  And the claim that one sentence is harsher than another due to proximity to an election would be much harder to prove and receive a different level of scrutiny than a claim that sentence length is due to race or gender.

The concern is real.  Regardless of the debate between accountability and independence, and regardless of how judges make their decisions (based upon ideology, constituent preferences, etc.), we do and should expect those decisions to be consistent and stable.  But I do not see any way we can argue that such results are constitutionally guaranteed.


[1] Chicago, IL: University of Chicago Press, 2012

[2] Gibson’s book argues that judicial elections do not undermine legitimacy; rather, judicial elections may actually boost it.

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Love, marriage, and divorce

These days most of the discussion regarding the right to privacy and the equal protection clause is focused upon same sex marriage.  At the same time that some states or adopting and other states are banning the practice, states are also modifying their divorce laws.  This week the “Healthy Marriage Act” was introduced in the North Carolina Senate.  Among other things, the law requires that couples observe a two-year waiting period before obtaining their divorce, although they do not have to live together.  Additionally, during the waiting period, the husband and wife (yes, the law does presume that marriage remains between a man and a woman) must take courses on communication and conflict resolution; again, the couple does not have to take these classes together.  If the marriage resulted in children, the couple is required to “complete a course of at least four hours on the impact of divorce on children.”[1]

 

If the right to privacy argument—that marriage is a fundamental right—wins the day and prevents bans on same sex marriage, does that same argument prevent a state from creating ‘undue burdens’ on the dissolution of that contract?  After all, the state’s interest in passing these amendments to the NC divorce laws is the same as those against same sex marriage.  The state seeks to protect the institution of marriage by 1) banning same sex marriage and 2) forestalling the dissolution of a marriage contract.   Preventing men and women from making their own choices over the intimate decision about when to divorce seems equivalent to preventing gays and lesbians the same choice about when to marry.  As Justice White noted in Griswold v. Connecticut:

‘Surely the right invoked in this case, to be free of regulation of the intimacies of [p503] the marriage relationship, “come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.” Kovacs v. Cooper, 336 U.S. 77, 95 (opinion of Frankfurter, J.).’ Concurring opinion.

If the decision to marry is covered by the right to privacy, then its complement, divorce, should also be covered.

 

If we use the privacy jurisprudence, we are left with determining if the NC law creates an undue burden.  While the justices have difficulty determining what an undue burden is in terms of privacy and abortion, it might not be as difficult to do so in terms of privacy and divorce.  Perhaps the waiting period is too onerous?  The justices may allow a 24- or 48-hour waiting period before obtaining an abortion, but 2 years (or 17,520 hours) is considerably longer.

 

Even if we are unwilling to claim that the waiting period or the courses are an undue burden, the law still has problems in terms of 1st amendment protections.  To receive the dissolution of the marriage, you must take two to three courses.  Again, if we have the right to receive information (Stanley v. Georgia), do we have the concomitant right to avoid it?  Sure, the state requires us to take a drivers course before getting a license, but there are other options (public transportation, bicycle, walking) and the interest of the state in road safety is, at the very least, significant.  But there is no other option to obtaining a divorce short of moving to another state and establishing residency.  Otherwise, a couple is forced to remain in a marriage.

 

Examining marriage from the dissolution stage, and dealing with restrictions there, may allow the Court to navigate through the “unchartered territory” Justice Kennedy mentioned in his oral arguments last week.  Divorce jurisprudence could pave the way for marriage jurisprudence.


[1] North Carolina Senate Bill 518 Section 1.a.3

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