What is killing judicial restraint?

The New Republic reviews a book critical of the various theories of constitutional interpretation. The author blames them for the judiciary being less deferential to the legislative branch, which he argues undermines democracy.

Cao v. Federal Election Commission

For 2301 as we dig into elections this week:

From the Washington Post:

The Supreme Court on Monday turned down the Republican National Committee’s latest attempt to knock out long-standing campaign finance restrictions.

Without comment, the justices rejected a challenge from the RNC and former Louisiana congressman Anh “Joseph” Cao that sought to end federal restrictions on how much a political party can spend in direct coordination with a candidate. Cao lost a reelection bid in 2010.

The RNC said the restrictions violate the party’s First Amendment rights, a claim that was turned aside by the U.S. Court of Appeals for the 5th Circuit.

It was one of two challenges the GOP filed after the 2008 elections. The court did not accept either of them.

In June, the justices let stand a lower court’s decision that upheld the constitutionality of the “soft-money ban” in the 2002 McCain-Feingold campaign finance reform act. That law bars national political parties from accepting or spending unregulated campaign cash.
- The National Journal.
- The FEC website.
- ScotusBlog.
- Campaign Legal Center.
- Roll Call.

Scorpions

Another extra credit option. A book detailing the personalities FDR placed on the court. A review from Slate.

Jay Bybee and the Takings Clause

Slate has a critical piece on 9th Curcuit Judge Jay Bybee's decision in Guggenheim v. City of Goleta which argues that he's engaged in conservative judicial activism by injecting his own view of the Constitution's Takings Clause and ignoring precedent. The decision concerns whether any level of government can, constitutionally, impose rent controls on property, or whether doing so amounts to a "takings."

There appears to be a healthy debate in legal circles about just what the Constitution's authors meant when they wrote that private property could not be taken for public use without just compensation.

Here's an interview on the subject with Richard Epstein.

One of the issues involved is whether a "regulatory taking" is effectively the same thing as an actual seizure of property.

Some background:

- A Brief History of the Takings Clause.
- The Takings of Private Property.
- The Takings Clause, From the Heritage Foundation.
- Eminent Domain, From Findlaw.

How to Analyze the Future Direction of the Supreme Court

This article by Tom Goldstein not only provides a terrific overview of what a Stevens less Supreme Court would look like, but more importantly for us, uses a precise methodology for dissecting how the Supreme Court approaches constitutional questions.

It breaks the future down into sections involving:

1 - The articles of the Constitution
2 - Cases involving the Bill of Rights
3 - Non-Constitutional Cases

Each is further divided into those issues that are most topical today. I'll try incorporating this into future lectures, but this is the best thing I've read in some time that details the specific constitutional conflicts at issue today, and how they are likely to shift -- or not -- in the near future.

Obama Criticizes Liberal Judicial Activism

From the NYT:

“It used to be that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically,” Mr. Obama said.

“And in the ’60s and ’70s, the feeling was — is that liberals were guilty of that kind of approach. What you’re now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error.”

He added, “The concept of judicial restraint cuts both ways.”

We Are All Activists Now

Barry Friedman and Jeffrey Rosen argue that both the left and right have grown accustomed to the use of an activist court to achieve their political aims.

What's a Liberal Justice Now?

A useful read for my 2302's from Jeffrey Rosen in the NYT.

When talking about the Supreme Court, Barack Obama has resisted the familiar ideological categories that have defined our judicial battles for the past several decades. He has made clear that despite his progressive inclinations, he is not a 1960s-style, Warren Court liberal — someone who believes that the justices should boldly define constitutional rights in an effort to bring about social change. It’s true that Obama has cited Chief Justice Earl Warren as a judicial ideal, emphasizing that Warren, a former governor of California, had a sensitive understanding of the real-world effects of Supreme Court decisions. But at the same time, Obama has suggested that liberals in the Warren Court mold may have placed too much trust in the courts and not enough in political activism.

....

Opps . . .

The Famous 'Kelo House' Property Is Now A Vacant Lot

Add on: A Takings Setback?

David Souter on the Constitution

If you have hour to kill, here's a great interview with the ex-Supreme Court Justice.

No Right to DNA Evidence

The Supreme Court ruled by a 5-4 margin that the due process clause cannot be interpreted to include DNA tests. In other words, a state does not deny the 14th Amendment's guarantee of the due process of the law if it does not allow an individual convicted of a crime to pay for his own DNA test to prove his innocence.

The case is District Attorney’s Office v. Osborne.

From Scotusblog:

Splitting 5-4, the Supreme Court ruled Thursday that an individual whose criminal conviction has become final does not have a constitutional right to gain access to evidence so that it can be subjected to DNA testing to try to prove innocence. ....

Chief Justice John G. Roberts, Jr., writing for the majority in District Attorney’s Office v. Osborne (08-6), noted that DNA testing provides “an unparalleled ability” to prove innocence or guilt, but its availability “cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt.” The opinion is available here.

The task of writing rules to control access to DNA evidence “belongs primarily” to the legislature, the Chief Justice wrote. Pursuing a “freestanding and far-reaching constitutional right of access” to DNA evidence through a civil rights lawsuit, Roberts wrote, would “short-circuit” efforts now being made by the federal government and many states to develop tools on access to such evidence. “There is no reason to constitutionalize” access through the courts when elected officials are making “a prompt and considered” response to the DNA phenomenon, the opinion concluded.

I highlighted what I think is the most important part of the decision. The majority wants the judiciary to defer to the legislature in this matter and to also limit the range of cases that can argued on civil rights grounds. Most commentary focuses on the ideological division in the decision reflecting the continued division between liberals and conservatives on the role of the court, the rights of criminal defendants (or convicts in this case), and civil rights. Since the court's have limited their ability to compel the states to abide by an expansive definition of constitutional language, this would probably also qualify as a an example of judicial restraint.

Commentary:
- Analysis: Handing off the DNA issue
- Justices Reject Inmate Right to DNA Tests

Ricci v. DeStefano and Sotomayor

Ricci v. DeStefano is the official name of the New Haven firefighters case which some have used to determine Sotomayor's views on affirmative action.

Here are few sites where you can get accurate info on the case:

- ScotusWiki - the docket.
- The oral argument before the Supreme Court.
- Scotus Blog - argument preview.
- Scotus Blog - argument recap.
- Background from the CSM.
- A WSJ story with links to audio from the appellate case.

Sotomayor, as an appellate court judge, voted to uphold the trial court's decision. Opponents have used this to brand her a judicial activist. Supporters argue that the decision was narrowly tailored to comply with the law, and so was an example of judicial restraint. Pick your poison.

The Supreme Court Does Not Do Evidence

When discussing appellate courts I mention that a key difference between a trial and an appeal is the former focuses on facts while the latter is concerned with procedure. If there are no procedural violations, appellate courts -- those that practice judicial restraint at least -- see no reason to order new trials on the basis of new evidence. This is true even for death penalty cases. Such is the case of Troy Anthony Davis.

The 1991 death sentence against Davis came under scrutiny after seven of nine witnesses who helped convict him recanted their testimony or changed their statements. Several told of being pressured by police to tell them what they wanted to hear. Three other people have said a man who identified Davis as the killer had confessed to being the triggerman.

The case has become a cause celebre for death penalty opponents, including the human rights group Amnesty International, which has launched a campaign on Davis's behalf. Among others, Pope Benedict XVI, South African Archbishop Desmond Tutu, former president Jimmy Carter and the Council of Europe have urged Georgia authorities to spare Davis's life. Even some supporters of the death penalty, notably former FBI director William S. Sessions and former congressman Robert L. Barr Jr. (R-Ga.), have called for a reexamination of the case.

However, relatives and supporters of the victim, off-duty Savannah police officer Mark Allen MacPhail, insist that police got the right man when they charged Davis with murdering MacPhail in the early hours of Aug. 19, 1989, when MacPhail tried to stop Davis and two friends from brutally beating a homeless man in a fast-food restaurant parking lot.

Amnesty International said yesterday that it was "truly shocking" that the Supreme Court has effectively ruled out the presentation of new evidence favoring Davis.

"Faulty eyewitness identification is the leading cause of wrongful convictions, and the hallmark of Davis's case," said Larry Cox, executive director of Amnesty International USA.

The condemned man's sister, Martina Correia, also denounced the Supreme Court's action. "The Supreme Court doesn't know everything," she said. "They make mistakes, too, and that's what we're trying to avoid here, a mistake that you can't take back."

But MacPhail's sister, Kathy McQuary, said her family believes Davis should be executed. "I'm just ecstatic that after 19 years, this is finally going to be over and we can have peace in our family; we can have closure," she said. "My brother was a police officer. That's why we are so adamant about the death penalty. They do risk their lives."

Judicial Restraint, Pros and Cons

A war seems to be raging in the blogosphere over the pros and cons of judicial restraint.

Here's the pro.

Here's the con.