Tag Archives: Supreme Court

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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Filed under Discrimination, The Judiciary, Understanding the U.S. Supreme Court

You can’t say that on television or in school!

Yesterday the Court of Appeals for the Third Circuit sat en banc hearing arguments in the “I ♥ Boobies” bracelet case.  In listening to oral argument, I was struck when one of the judges stated at 16:33, “I understand your policy position, but I am still frankly trying to understand your legal position.  And I Will concede that while my colleagues may well be able to find a coherence in the Supreme Court’s school speech cases, some of it has eluded me which is why I am trying to [unintelligible] with Tinker, with Frasier, and with Morse.”


The oral argument, even if you only listen to the first 20 minutes[1], the argument for the school district and the questions from the bench reveal the difficulties created for schools since Frasier and Morse.  Both of these cases provided a great deal of discretion for schools to police language.  Frasier suggests that the ‘double entendre’ is grounds for sanction.  Morse extends that discretion to statements that are ambiguously related to drugs even if there is no clear meaning.  As reported by the Morning Call, the school’s attorney noted that allowing this speech “”…threatens to open the floodgates to cause-based marketing fueled by sexual innuendo,” school district lawyer John E. Freund said, noting hat other diseases, including testicular cancer, have spawned awareness campaigns with slogans designed to get attention through titillation.”[2]



The claim of the school in the case before the Third Circuit is that two women wearing plastic bracelets that read “I ♥ Boobies” on the same day that others in the school, including teachers,  were wearing other paraphernalia supporting breast cancer awareness.  Essentially, the school district is arguing that 1) the statement on the bracelet has two meanings and one is to titillate and 2) that the mere presence of the word “boobies” on a bracelet causes a material disruption when we are dealing with middle schoolers.


How far does this reasoning extend?  Is anything that might cause an outbreak of giggles or juvenile jokes now susceptible to censorship?  I am not a fan of the slippery slope argument, but the Court’s cases since Tinker seems to head in that direction—reducing school discourse and free speech to such an extent that schools are allowed to quash any speech that might be taken in a sexual way or as associated with drugs? Can the schools eliminate homophones (or close relatives) that tend to get grade and middle schoolers flustered?  What will be next?  “Call of Duty” phone skins or t-shirts will be banned because some younger students might take the opportunity to take the conversation in a different direction?  On Career Day, parents must use different words to describe their jobs as analysts?

Perhaps the Third Circuit will find a way to stop the avalanche down this slope that the school district wishes to ride.  And if presented to your class as a hypothetical, this case seems like a good one to use to draw distinctions between Tinker and its progeny.

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Filed under Freedom of Speech, Assembly, and Association

When government stops working

The court of appeals for the DC circuit ruled today that President Obama’s recess appointments for the National Labor Relations Board were unconstitutional.  This ruling essentially nullifies a large number of decisions made by the board since he made these appointments a little over a year ago.


Using original meaning and textualism, the appellate court noted that the founders used the word “the” in front of “Recess” indicating only one.  And, in referring to other times when the Congress may not be meeting, the word “adjourn,” in some form, was employed.  Therefore, “the Recess” cannot be equivalent to the intrasession adjournments.  Additionally, the combination of “the Recess” and “the next Session” in the recess appointments clause provides further justification for holding that adjournments are not recesses.  The court then continues to justify the ruling through historical and legal precedent, including INS v. Chadha and Myers v. USChadha is cited to note that frequency of an action (including legislative vetoes in bills or making recess appointments during intrasession adjournments) does not make that action constitutional.  Myers provides support for examining the language of the constitution closely when dealing with the appointments clause.


These parts of the ruling are certainly fabulous and clear examples of the application of the legal approaches describe in the CLCA textbooks.  And the legal analysis is well done, as expected.  However, the opinion avoids the approach of pragmatism.  And perhaps it is time for a heavy dose of pragmatism at least when interpreting the Appointments clause.  As the New York Times reports[1], this ruling leaves the NLRB with only one member and essentially shuts down part of the executive branch and prevents the President from executing the National Labor Relations Act because the Senate will not confirm his nominees.  The same situation is repeated within the judiciary as has been repeated in state of the judiciary reports from Chief Justices Rehnquist and Roberts for years.


The opinion of the court of appeals notes some legislative business that occurred over the courts of these various adjournments.  We documented that business only occurs during some of these periods.[2]  And certainly the judiciary is managing to complete cases even though it is woefully understaffed.  Passing a constitutional amendment to provide greater discretion for recess appointments or forcing the Senate to provide some hearing or vote on presidential nominees is DOA in this polarized political climate.  The US is going to appeal this ruling to the US Supreme Court.  Based upon precedent and jurisprudential philosophies, we would predict the US would lose.  If so, the appointments process is also DOA.  Is this a situation that calls for pragmatism and a deviation from more “legal” forms of interpretation?

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Filed under The Executive, The Judiciary, The Legislature, The Separation of Powers System in Action, Understanding the U.S. Supreme Court

Is this more than “In God We Trust”?

The Courier-Journal in Kentucky reports on an establishment clause appeal denied by the Kentucky Supreme Court.[1]   Americans for Atheists are taking their chances and appealing the High Court, and this case may have legs.

The justices, back in 2004, elided the constitutionality of the pledge in a case out of the Court of Appeals for the Ninth Circuit (Elk Grove Unified School District et al. v. Newdow, et al. 542 US 1) opting instead to rule that Newdow did not have standing to bring suit.  In 2010, the Ninth Circuit joined many of its brethren in supporting the pledge of allegiance as a patriotic ritual, not a forced prayer.  On the same day, the Ninth Circuit also denied that printing “In God We Trust” on US currency violates the establishment clause.  “Not every mention of God or religion by our government or at the government’s direction is a violation of the Establishment Clause,” wrote Judge Bea.[2]

From these cases, it seems that general and long-standing references to God are allowable even if required by the state.  The case in Kentucky takes this precedent farther.  In the establishing legislation for Kentucky’s Office of Homeland Security (KRS 39G.101(2)(a)), “requires the executive director of the KOSH to:

Publicize the findings of the General Assembly stressing the dependence on Almighty God as being vital to the security of the Commonwealth.”

The section further instructs that the “training and educational materials” include the legislative findings that state:

The General Assembly hereby finds that:

  1. No government by itself can guarantee perfect security from acts of war or terrorism.
  2. The security and well-being of the public depend not just on government, but rest in large measure upon individual citizens of the Commonwealth and their level of understanding, preparation, and vigilance.
  3. The safety and security of the Commonwealth cannot be achieved apart from reliance upon Almighty God as set forth in the public speeches and proclamations of American Presidents, including Abraham Lincoln’s historic March 30, 1863, Presidential Proclamation urging Americans to pray and fast during one of the most dangerous hours in American history, and the text of President John F. Kennedy’s November 22, 1963, national security speech which concluded: “For as was written long ago: ‘Except the Lord keep the city, the watchman waketh but in vain.’”[3]

Additionally, a plaque “prominently displaying” these legislative findings would appear on the entrance of the Emergency Operations Center in Kentucky.

In reversing the lower court, the Court of Appeals of Kentucky likened the legislative findings to a case from the Court of Appeals for the 6th Circuit involving the Ohio state motto (“With God, All Things Are Possible).[4]  Quoting the 6th Circuit that said this motto was merely “lip service to the puissance of God”; there was no coercion.

But is this case truly the same as a motto on a dollar bill or at a state capital?  Is it similar to the pledge?  Or, does this insertion of language into the training and educational materials for a state agency cross the often blurry line between acknowledging the role the Christian God has played in our governmental history and purposely imposing that God on state employees?  Does this go further than the display of the Ten Commandments in Van Orden v. Perry (545 US 677 2005)[5]?  Perhaps the General Assembly’s findings are simply the legislative equivalent of dicta.  And perhaps the plaque itself memorializing those findings for all who enter the government building does not more than “pay lip service” without coercing.  Or, as the Kentucky Court of Appeals argued, it merely “makes reference to historic instances where American leaders have prayed for Divine protection in trying times.”[6]

Perhaps not.  The legislation does more than memorialize or pay tribute to historic references to Divine power.  It requires that all educational and training materials make use of these references.  For state employees, this is tantamount to indoctrination.  To work here, the success of your work is directly linked with a belief in God.  The capitalization of God versus noting the assistance of the divine strongly suggests that a Hindu employee should not invoke Shiva, Vishnu, or Brahma for grace.  The Lemon test is problematic and the Court has been deferential to state displays in various forms, but requiring the inclusion of fealty to God (or any god for that matter) pushes the limits of the establishment clause too far.

[3] Kentucky Office of Homeland Security; and Thomas Preston, in his official capacity as the Director of the Kentucky Office of Homeland Security v. Michael G. Christenson, et al.  No. 2009-CA-001650-MR 2012 page 3

[4] 243 F.3d 289 (2001)

[5] Page 186 CLCA-Rights, Liberties, and Justice 8th edition.

[6] Supra n. 3 page 9

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Tracking or Tracing?

On March 31, the New York Times reported that some police departments are routinely using ‘cell phone tracing’ in their investigations, and many are doing so without obtaining a warrant beforehand.[1]  The Time then states that:

The issue has taken on new legal urgency in light of a Supreme Court ruling in January finding that a Global Positioning System tracking device placed on a drug suspect’s car violated his Fourth Amendment rights against unreasonable searches.

Is this supposition accurate?  Given the narrow reasoning that held in the Jones[2] case, there is clearly room for distinguishing between ‘cell phone tracing’ and ‘GPS tracking.’  Justice Scalia, writing for the Court, sticks close to his beloved originialism  in his opinion:

“It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted…”

The crux of the case, then, for Scalia was the physical trespass alluding to early Fourth Amendment doctrine prior to the Warren Court’s broadening to reasonable expectations of privacy in Katz v. US,[3] “… Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, we must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.”

For Alito, the issue was different.  The trespass in this case was inconsequential.  His main concern, or so it seems from his opinion, is the prolonged use of the device.  He writes:

“First, the Court’s reasoning largely disregards what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches great significance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car’s operation)…By contrast, if long-term monitoring can be accomplished without committing a technical trespass — suppose, for example, that the Federal Government required or persuaded auto manufacturers to include a GPS tracking device in every car — the Court’s theory would provide no protection.”

Under either of these theories, the widespread use of cell phone tracing reported by the Times does not seem constitutionally problematic.  Police departments may be using the devices? freely, but if they are not attaching them nor following someone’s phone from tower to tower for an extended period of time, neither Scalia nor Alito should be against the procedure.

It is questionable whether even the broader ‘reasonable expectation of privacy’ argument would be relevant? here either.  Any cell phone user is aware that the phone knows your location; the phone lets you know when you are out of your network’s range or resets automatically when you change time zones whether you are making calls or not.  The point of a cell phone is that you can call from anywhere and do not have to enter a building or booth to do so.  In Katz, it was the act of closing off the booth as well as paying for a direct connection that led to his reasonable expectation of privacy.  A cell phone signal that bounces tower to tower wirelessly, that seems easy to intercept even innocently, seems to be the antithesis to the phone booth in Katz.  If this argument is sound, then there seems to be no safe harbor left under the Fourth Amendment for cell phone users wishing to keep their locations private.  Perhaps it is a good thing that the Times reports that several state legislatures as well as Congress are considering legislation limiting this procedure.

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Filed under Investigations and Evidence