Here's the case (PDF). Discuss.
Full analysis later when I can.
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That Justice Antonin Scalia does not believe that the Equal Protection Clause of the 14th amendment does not prohibit discrimination on the basis of gender should not come as a surprise to anyone. Via Huffington Post, in an interview with California Lawyer magazine, Justice Scalia confirms what most of us who thought about the question, already knew:
[Q:]In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don't think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we've gone off in error by applying the 14th Amendment to both?
[SCALIA:] Yes, yes. Sorry, to tell you that. ... Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn't.
This has been a central point to the discussion of originalism, original understanding and original purpose constitutional interpretation which I have written about a lot here. But this specific question on gender discrimination and Scalia's view was the subject of a Daily Kos post I wrote in 2006:
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The Supreme Court today agreed to hear the Walmart employee discrimination case, described as the largest case of its type in U.S. history.
The question before the court is not whether there was discrimination but rather whether the claims by the individual employees may be combined as a class action. The court’s decision on that issue will almost certainly affect all sorts of class-action suits, including ones asserting antitrust, securities and product liability, as well as other claims.
The case is Wal-Mart Stores, Inc. v. Dukes, No. 10-277. Scotusblog has more.
- Kentucky v. King, concerning exigent circumstances (lower court opinion)
- US v. Tinklenberg, concerning speedy trial rights (lower court opinion)
- Bullcoming v. New Mexico, concerning Confrontation Clause rights (lower court opinion)
- Freeman v. US, concerning crack sentence reduction authority (lower court opinion)
- Sykes v. US, concerning application of Armed Career Criminal Act (lower court opinion)
- U.S. v. Denedo (lower court opinion)
In the Kentucky case, the Court will decide whether police can use evidence they seized breaking into the wrong apartment following a drug suspect. [More...]
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I guess I understand why some Dem bloggers are upset now that the Supreme Court confirmation process has become, horrors, "partisan." But I just am not one of them. Kevin Drum writes:
Elena Kagan was only barely confirmed to the Supreme Court yesterday, continuing a recent trend of court picks becoming ever more partisan. Jon Chait comments: [. . .] Th[is] trend has many legal observers lamenting a Supreme Court confirmation process on a steady trajectory toward complete polarization and a seemingly inevitable filibuster."
So what happens if this becomes institutionalized? It means that no president with a Senate controlled by the opposite party will ever be able to place someone on the Supreme Court. [. . .P]erhaps some change is in order?
Why exactly is this a bad thing? Imagine a system where Scalia and Thomas were not on the Court? Imagine a system where the electorate realized that the Senate had to agree with the President on who should sit on the Supreme Court? Oh wait, that is how the Founders designed it:
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No surprise here, but the Senate Judiciary Committee has approved the nomination of Elena Kagan for Supreme Court Justice.
Newsweek reports that Lindsay Graham's support for Kagan kills any chance of a filibuster.
President Obama lauded the vote calling it a "bipartisan affirmation."
Today's vote by the Senate Judiciary Committee is a bipartisan affirmation of her strong performance during her confirmation hearings.
I think some would disagree with that characterization. I just wish he'd stop harping on the need for bi-partisanship and remember that Republicans didn't elect him, Democrats did, and it's not only okay to be partisan, it's what we expected when we voted for him -- change and all that.
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Seeing their brilliant strategy of attacking Thurgood Marshall shockingly not find a resonant audience, the Right has trotted out a new line of attack. It seems that when Elena Kagan was in the Clinton White House, she provided some wording advice on how to state their view on a late term abortion procedure to the American College of Obstetricians and Gyncecologists (ACOG). This, it appears, is scandalous behavior. It will be interesting to see if the GOP Senators pick up this point, and whether any of the GOP's witnesses are asked if they submitted their statements for review by the GOP staff of the Judiciary Committee.
In any event, when you get to the actual allegation, it is nonexistent. Here's the description at NRO by a conservative DC lawyer who worked in the Bush Justice Department of Kagan's horrible sin:
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When I had a spare moment today, I watched the Spain-Portugal World Cup game (Spain won 1-0.) So I watched none of the Kagan confirmation hearings. I just read this report on the hearings:
Under questioning by the chairman of the Senate Judiciary Committee, Senator Patrick J. Leahy, Democrat of Vermont, Ms. Kagan said she thought it would be inappropriate for her to talk about how she might rule on pending cases or cases “that might come before the court in the future” — or to answer questions that were “veiled” efforts to get at such issues. Moreover, she said, she also now believed that “it wouldn’t be appropriate for me to talk about past cases” by essentially grading Supreme Court precedents, because those issues, too, might someday come again before the court.
Some Republicans seemed willing to give Ms. Kagan a pass on her retreat from her 1995 standard about how open and specific nominees should be about their legal views. “I really don’t have any major disagreement with where she’s drawn the line,” Senator John Cornyn, Republican of Texas, said during a break.
I'll read the transcript to see, but if I were a Senator, I would not accept the position Kagan has taken. I would vote No on bringing the nomination to the floor until the nominee answered the questions. But it seems clear that I am in the minority on this point.
Speaking for me only
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A clever headline from the WaPo - Kagan may get confirmed, but Thurgood Marshall can forget it:
"Justice Marshall's judicial philosophy," said Sen. Jon Kyl (Ariz.), the No. 2 Republican in the Senate, "is not what I would consider to be mainstream." Kyl -- the lone member of the panel in shirtsleeves for the big event -- was ready for a scrap. Marshall "might be the epitome of a results-oriented judge," he said.
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Driving back from the jail, I was listening to CNN which was broadcasting Elena Kagan's opening remarks live. Without accompanying video to distract me, I was able to focus just on the content of her statement and her tone.
First, she is a really good speaker. She exuded a sense of calm. Second, there was a lot of emphasis on constitutional rights and equality of justice and on the need to be fair.
Third, she was deferential, promising to listen to Congress, the American people as they speak through the electoral process and their Representatives, and her fellow justices.
She doesn't seem to me to have an agenda. [More...]
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The ocnfirmation hearings for Supreme Court nominee Elena Kagan have begun.
Dan Abrams tweets:
What a weird spectacle. Kagan has to sit there expressionless as Sessions insults her again and again.
Glenn Greenwald tweets:
I hope progressive legal groups will refrain from heaping praise on Kagan unless/until they learn a little about her judicial philosophy.
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The Supreme Court released its final decisions this morning. Among the most anticipated was McDonald v. Chicago (PDF), where the question presented was whether the Second Amendment applies to the States, via the incorporation doctrine. Justice Stevens' dissent includes a passage on the Constitution and the role of the Supreme Court that I believe will be remembered:
[T]he liberty safeguarded by the Fourteenth Amendment is not merely preservative in nature but rather is a“dynamic concept.” Stevens, The Bill of Rights: A Centuryof Progress, 59 U. Chi. L. Rev. 13, 38 (1972). Its dynamism provides a central means through which the Framers enabled the Constitution to “endure for ages to come,” McCulloch v. Maryland, 4 Wheat. 316, 415 (1819), a central example of how they “wisely spoke in general language and left to succeeding generations the task of applying that language to the unceasingly changing environment in which they would live,” Rehnquist, The Notion of a Living Constitution, 54 Tex. L. Rev. 693, 694(1976). “The task of giving concrete meaning to the term‘liberty,’” I have elsewhere explained at some length, “was a part of the work assigned to future generations.” Stevens, The Third Branch of Liberty, 41 U. Miami L. Rev.277, 291 (1986).21 The judge who would outsource the interpretation of “liberty” to historical sentiment has turned his back on a task the Constitution assigned to him and drained the document of its intended vitality.
(Emphasis supplied.) Speaking for me only.
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Confirmation hearings begin Monday for Supreme Court nominee Elena Kagan.
Republican Senator Jeff Sessions is still talking about a filibuster. I think he's talking to himself.
Kagan will be quizzed by 12 Democrats and 7 Republicans. The AP has a guide here.
In other Supreme Court news, condolences to Justice Ruth Bader Ginsburg, whose husband, lawyer and professor Martin Ginsburg, passed away today at 78, from complications related to metastatic cancer.
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In a NYTimes Editorual published today:
Two recent moments have brought to mind Chief Justice John Roberts’s simplistic description of a Supreme Court justice as an umpire who confines himself to calling balls and strikes. The first was the reminder in Detroit on Wednesday night that umpires are highly fallible, and their calls subjective, even when something as important as Armando Galarraga’s nearly perfect game is at stake.
The other was former Justice David Souter’s brilliant demolition of the umpire metaphor in his commencement address at Harvard last week. It is hard to imagine a better preparation for the confirmation hearings of Elena Kagan later this month.
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[F]or those who care about the Supreme Court, Justice Souter served up some rich fare: his own vision of the craft of constitutional interpretation and a defense of the need for judges to go beyond the plain text — what he called the “fair-reading model” — and make choices among the competing values embedded in the Constitution. Doing this was neither judicial activism nor “making up the law,” he said; rather, it was the unavoidable “stuff of judging,” and to suppose otherwise was to “egregiously” miss the point of what constitutional law is about.
[. . . Souter] note[d] that with another confirmation season approaching, “we will as a consequence be hearing and discussing a particular sort of criticism that is frequently aimed at the more controversial Supreme Court decisions: criticism that the court is making up the law, that the court is announcing constitutional rules that cannot be found in the Constitution, and that the court is engaging in activism to extend civil liberties.” He framed the speech as a rebuttal to those criticisms.
Justice Souter's address provides a great place to start with nominee Elena Kagan on the issue of judicial philosophy and constitutional interpretation. Let's hope some intrepid progressive Senator on the Judiciary Committee (how about Senator Specter?) opens the conversation. In the meantime, I join Greenhouse's pleasure in seeing Justice Souter choosing to remain in this important discussion about constitutional interpretation.
Speaking for me only
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