The Rise of the Conservative Legal Movement

Thirty years ago, when most of the major legal institutions in America were left/liberal, conservatives and libertarians set about trying to create conservative/libertarian institutions to counter them. That the premise of a new book by Steven M. Teles (a Visiting Lecturer in Law at Yale Law School), The Rise of the Conservative Legal Movement: The Battle for Control of the Law.

Orin Kerr writes at the Volokh Conspiracy that Teles looks at what he sees as the institutions that have resulted because of this movement; The Federalist Society, the Institute for Justice, the Center for Individual Rights, law school centers of law & economics (many funded by Olin), and George Mason University Law School.

On the Federalist Society, Teles argues persuasively that the key to its influence is in hosting a "big tent" that is open to a wide range of conservative and libertarian ideas. As Teles tells it, the Federalist Society is influential because provides a way for dispersed conservative and libertarian law students and lawyers to identify each other, get to know each other, and to establish an intellectual identity apart from the left/liberal views that tend to dominate the law schools. Teles also argues that the key to the Society's role is that it hosts debates rather than takes positions; this enables a wide range of different views to feel at home, while also focusing attention on the long-term development of ideas.

Matt Frost at The American Scene writes about the reasons for the rise of the school as discussed in the Teles' book: "Since electoral advantage is not enough to effect change in the nation's legal framework, conservatives mobilized to build an intellectual infrastructure that could support their long-term ideological project."

8:17 PM ET | 02-20-2008 | permalink | comments (1) | e-mail post

Cunningham's Briber Get 12 Years in Jail

Brent Wilkes, the Poway, California defense contractor who federal prosecutors have said was the mastermind behind the largest congressional bribery scheme in history, was sentenced to 12 years in prison earlier today. Prosecutors had wanted 25 years or at least a minimum of 16 years and eight month - twice what former Rep. Randy "Duke" Cunningham received for his role in the scheme.

Wilkes was convicted on Nov. 5 of "conspiracy, bribery, fraud and money laundering in connection with the bribery scheme" that ended the political career of Cunningham. Prosecutors said the scheme, where Wilkes gave Cunningham "expensive meals, gifts, fancy trips, cash bribes and prostitutes" in return for defense projects sent in Wilkes direction. The plan netted Wilkes $46 million.

The San Diego Union-Tribune reports that U.S. District Judge Larry A. Burns disagreed with prosecutors about Wilkes being the mastermind, "yet said he was troubled by Wilkes' demeanor in court."

"Mr. Wilkes, you have not indicated any sense of contrition to this day," he said. ... The judge said there were troublesome aspects to this case, which demonstrated how shrewd and exploitative Wilkes was.

To the end, Wilkes continued to insist he had done nothing wrong, politely refusing to admit his guilt when the judge urged him to do so.

9:55 PM ET | 02-19-2008 | permalink | comments (1) | e-mail post

Nevada Supreme Court Rules for NBC Over Kucinich

The Nevada Supreme Court tonight ruled in favor of NBC and said the network did not have to include Ohio Rep. Dennis Kucinich in its Democratic debate tonight in Las Vegas.

Yesterday a lower court judge had ruled that Kucinich should be included. Kucinich had originally been invited to take part in the debate, but the network later rescinded the invitation when it decided to go only with the top three candidates: Hillary Clinton, John Edwards and Barack Obama.

8:17 PM ET | 01-15-2008 | permalink | comments (15) | e-mail post

Supreme Court Hears Arguments On Voter IDs

Does voter fraud exist? Quite a few Republicans think it does, and in many of the states where they control the levers of government, they have enacted voter identification laws. But repeated studies have shown that the problem does not exist.

Even in Indiana, the state that has the voter ID law that will be the subject of the hearing at the U.S. Supreme Court today (the consolidated cases of Crawford v. Marion County Election Board and Indiana Democratic Party v. Rokita), its Attorney General argues that it's mainly a preventative measure, since Indiana has had almost no cases of voter fraud to speak of.

As NPR's Nina Totenberg reports, a study done by a Democrat and a Republican working together found that while there is voter fraud, almost none of it actually happens in the precincts where people actually vote.

But 24 states have voter ID law and Indiana has the strictest: it requires anyone voting in person to present a current government photo ID. Indiana Solicitor General Thomas Fisher will tell the Supreme Court justices Wednesday that law is necessary to promote public confidence in the system.

Countering that argument will be lawyer Paul Smith. "Under the Supreme Court's doctrine, the fundamental right to vote is protected from laws which look like legitimate regulations but don't actually serve any purpose while imposing significant burdens," Smith says.

The state, however, argues that all voting regulations impose some inconvenience.

Update: The Scotusblog reports that the justices "studiously avoiding almost all mention that it was examining a thoroughly partisan political battle .."

"Only two Justices -- Ruth Bader Ginsburg and John Paul Stevens -- even hinted at the real-world fact that the photo ID law in Indiana is at the heart of a bitter, ongoing contest reaching well beyond Indiana. It is a dispute between Republicans worried over election fraud supposedly generated by Democrats to pad their votes, and Democrats worried over voter suppression supposedly promoted by Republicans to cut down their opposition."

12:32 PM ET | 01- 9-2008 | permalink | comments (21) | e-mail post

Supreme Court Takes Second Amendment Case

The U.S. Supreme Court has decided to hear a case that will determine whether the District of Columbia's strict gun law violates the Constitution. It's the first time since 1939 that the top court has taken on a case that looks at the meaning of the Second Amendment.

NPR's Nina Totenberg reports that the court will examine if the Second Amendment protects a collective, military-style right to have guns (the "well-regulated militia" portion highlighted by those who support gun control) or an individual right (the "right of the people to keep and bear arms" part zeroed in on by groups like the National Rifle Association.)

Totenberg says this is the test case that gun-rights advocates have long been seeking. If the court rules for the individual right, then it means many more challenges to similar gun laws throughout the nation. If not, it likely will block legal challenges and leave gun regulation largely as it is now — in the hands of elected officials.

But The Washington Post's Marc Fisher says the court's decision won't make a bit of difference. He says the truth is that gun lobbying on both sides has led to a political stalemate, and neither position — we need more guns or we need fewer guns — really makes much of a difference when it comes to stopping crime or protecting people. Ultimately, it will be the American public's feelings on the matter that will be the deciding factor, he says. "Simple regulations, not fancy legal arguments, will determine who gets to own guns, and those regulations will be driven by politicians under pressure from citizens who've had enough," he writes.

9:39 AM ET | 11-21-2007 | permalink | comments (16) | e-mail post

U.S. War Resisters Face Different Legal Outcomes

A U.S. war resister and his supporters won an important legal skirmish in Tacoma, Wash., Thursday, but two Americans who fled to Canada to avoid service in Iraq had their appeals to stay in that country blocked.

A federal judge in Tacoma issued a preliminary injunction that stops the military from going ahead with court-martial proceedings against Ehren Watada, an Army first lieutenant who refused to deploy to Iraq. The judge says the military court is ignoring Watada's constitutional right not to face double jeopardy after his first court-martial ended in a mistrial.

The injunction means Watada has a better chance of winning his case, but it also means he might not get a chance to test his central argument — that the Iraq war is illegal — in court.

Meanwhile, Reuters reports that the Canadian Supreme Court declined to hear appeals from two American war resisters, Jeremy Hinzman and Brandon Hughey, who deserted the Army and fled to Canada in 2004. The men had appealed rulings from immigration authorities and two courts that they are not refugees in need of protection.

Now the Canadian government wants them to leave. "All refugee claimants in Canada have the right to due process and when they have exhausted those legal avenues we expect them to respect our laws and leave the country," said Mike Fraser, spokesman for the citizenship and immigration minister.

But under the Canadian legal system, it could still be a long time before the men have to leave. For instance, they can ask for a pre-removal risk assessment to judge whether they would be at risk of torture, death or cruel and unusual punishment or treatment in the United States. And The Canadian Press reports that the men and their supporters will press the Canadian parliament to create a provision for them to stay.

10:04 AM ET | 11-16-2007 | permalink | comments (3) | e-mail post

Looking at the Ethics of the Lethal Injection Challenge

The Supreme Court decided to halt an execution in Mississippi this week, marking the third stay from the justices since they agreed to hear a challenge to lethal injection. It likely means that states will hold off on all executions until the high court rules on the case, which claims the drug mixture used for the injections can cause severe pain and amounts to cruel and unusual punishment.

The "de facto" moratorium and the case itself raise an interesting ethical question. In the past, other inmates have challenged the constitutionality of lethal injection, have lost their appeals and have been executed. And Richard Dieter, the executive director of the Death Penalty Information Center, says that the court has declined to take similar appeals in the past. So how is it fair that the justices have just now decided to weigh in, and, in the meantime, executions are likely to stop?

When I posed those questions to Stephen Gillers of New York University, an expert on legal ethics, he said it's not a matter of fairness in the conventional sense. He pointed to a story about late Supreme Court Justice Oliver Wendell Holmes.

Continue reading "Looking at the Ethics of the Lethal Injection Challenge" »

5:08 PM ET | 11- 1-2007 | permalink | comments (7) | e-mail post

Hill, Thomas Battle in Media over Harassment Charges

For much of this week, Supreme Court Justice Clarence Thomas has been talking to the media about his new book, My Grandfather's Son. He has spoken extensively about his contentious confirmation hearing 16 years ago and the woman who he says falsely accused him of sexual harassment, Anita Hill.

Now Hill is speaking out, too. The Boston Globe reports that Hill says she stands behind the testimony she gave to the Senate Judiciary Committee in 1991.

In his book, Thomas says Hill was a mediocre employee who was used by political opponents. (NPR's Supreme Court correspondent Nina Totenberg described Thomas' book as being "beautifully written" but said his bitterness "permeates every page.") In an appearance on CBS' 60 Minutes, Thomas called Hill a liar, adding, "She was not the demure, religious, conservative person that they portrayed."

Hill, now a law professor at Brandeis University, said she was shocked by Thomas' charges. She says she was reluctant to re-enter the debate but felt she had to defend herself.

Ruth Marcus, who covered the confirmation hearings for The Washington Post, writes that the Hill-Thomas debate is one of those "questions destined to remain disputed." (Although Marcus adds that she still believes the evidence supported Hill's version of events.)

11:44 AM ET | 10- 3-2007 | permalink | comments (11) | e-mail post

Goldsmith Testifies Before Senate Judiciary Committee

By all accounts, Jack Goldsmith is a conservative's conservative. The former head of the Justice Department's Office of Legal Counsel says he strongly believes that in times of crisis, the president has the right to use special wartime powers to protect the country. But Goldsmith ended up on a collision course with the White House over the way the president went about taking on those powers.

In testimony today before the Senate Judiciary Committee, Goldsmith told senators that the White House has paid "scrupulous attention" to the legal questions surrounding the war on terror. But in his opening statement, Goldsmith also said that the president's failure to consult Congress and use of a "go-it-alone approach" to governance has been detrimental to this administration and future presidents.

Nina Totenberg reported for Morning Edition that Goldsmith has been openly critical of the White House for using legal opinions that he felt were deeply flawed to support expanded powers for the president. (A key part of Goldsmith's job was basically telling the president what he could and could not do legally.)

Goldsmith, who now teaches at Harvard Law School, details the administration's legal deliberations on terrorism and detainee issues, and why he came to strongly disagree with them, in his book, The Terror Presidency.

12:31 PM ET | 10- 2-2007 | permalink | comments (2) | e-mail post

Judge Rules Provisions of Patriot Act Unconstitutional

For the second time this month, a judge has ruled sections of the Patriot Act unconstitutional.

CNN reports that the two provisions struck down Wednesday deal with searches and intelligence gathering. U.S. District Judge Ann Aiken of Portland, Ore., ruled that the act violates the Constitution because it "permits the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause requirements of the Fourth Amendment."

The government "is asking this court to, in essence, amend the Bill of Rights, by giving it an interpretation that would deprive it of any real meaning. The court declines to do so," Aiken said.
The Justice Department was reviewing the decision, said spokesman Dean Boyd.

Aiken's ruling came in a case brought by attorney Brandon Mayfield, a Portland native who had been wrongly detained as a terrorism suspect in the Madrid bombings of 2004. As The Washington Post reports, the FBI used expanded powers under the Patriot Act "to secretly search Mayfield's house and law office, copy computer files and photos, tape his telephone conversations, and place surveillance bugs in his office using warrants issued by the Foreign Intelligence Surveillance Court."

A New York judge also struck down part of the Patriot Act this month, ruling on Sept. 6 that provisions allowing the FBI to use national security letters to get data from private companies without a court warrant were unconstitutional.

9:40 AM ET | 09-27-2007 | permalink | comments (16) | e-mail post

High Court to Hear Lethal Injection, Voter ID Cases

The U.S. Supreme Court agreed today to hear cases examining the constitutionality of two prominent issues: lethal injection and voter identification requirements.

The Associated Press reports that the court will hear an appeal from Ralph Baze and Thomas Clyde Bowling Jr., two Kentucky death-row inmates who sued the state in 2004, claiming lethal injection amounts to cruel and unusual punishment. Baze was scheduled to be executed today, but the Kentucky Supreme Court halted the proceedings earlier this month.

Lethal injections are used in 37 states. Anti-death penalty advocates say the three-drug "cocktail" used in injections can lead to excruciating pain. In Kentucky, an appeals court and the state's Supreme Court have ruled that lethal injection is constitutional. But a judge in Tennessee ruled against lethal injection last week and ordered the state to not to use it. A California judge made a similar ruling last year.

Ohio State University law professor Douglas Berman points out at his Sentencing Law and Policy blog that the court's decision to hear the case could mean a moratorium on all lethal injection executions nationwide until a ruling is issued, possibly as late as June 2008.

And in a case that will have implications for the 2008 elections, the Supreme Court also agreed to decide if voter identification laws unfairly dissuade minorities and the poor from voting. The challenge originates from an Indiana law that requires voters to present photo ID at the polls. The state says the law reduces voter fraud.

Along with these two cases, the court agreed to hear 15 others.

2:25 PM ET | 09-25-2007 | permalink | comments (2) | e-mail post

Federal Judge Strikes Down Key Section of Patriot Act

You know, the idea that the FBI could send a company or an individual a letter, ask them for records and then tell them that they couldn't tell anyone about it, never seemed quite kosher. Apparently, U.S. District Judge Victor Marrero feels the same way.

On Thursday, Marrero ruled that the section of the Patriot Act that requires people contacted by the FBI for information not to tell anyone about that contact, or what information was given, is unconstitutional. Marrero agreed with the American Civil Liberties Union that so-called national security letters, which the FBI uses without getting permission from a judge, are effectively gag orders that violate First Amendment rights of free speech.

The letters were actually created in 1986 but were rarely used. The Patriot Act made it much easier for the FBI to use them without court order. Charlie Savage of The Boston Globe reports that in 2005, 19,000 of the letters were sent, seeking 47,000 pieces of information. When the U.S. inspector general analyzed a batch of 293 national security letters issued between 2003 and 2005, he found 22 possible breaches of regulations. This was after Attorney General Alberto Gonzales "had testified that there had not been a reported instance of Patriot Act powers being abused. Later, it turned out Gonzales had been aware of the problems with the National Security Letters."

Marrero, who had struck down parts of the Patriot Act once before, gave the government 90 days to appeal his order, which it is likely to do. If the ruling is upheld, it will mean the letters cannot be used without significant oversight.

9:52 AM ET | 09- 7-2007 | permalink | comments (1) | e-mail post

Vick's NFL Career Seems Headed Down the Drain

Atlanta Falcons star quarterback Michael Vick is now in more trouble than a long-tailed cat in a room full of rocking chairs.

The two remaining co-defendants in the case have now scheduled hearings to enter plea agreements. That leaves Vick as the only one of the four people charged still facing trial. And ESPN reported Monday night that Vick's attorneys met with federal prosecutor Michael Gill and the investigators.

The end is nigh. Prosecutors will probably only make a deal if Vick spends some time in the big house. Karl Rove has a better chance of returning to the White House than Vick does of returning to the NFL in 2007. The bigger question is whether Vick will play football again. Ever.

I'm not much of a gambler, but I don't think I'd be putting any money on Vick's chances.

9:36 AM ET | 08-14-2007 | permalink | comments (6) | e-mail post

Conrad Black Must Stay in U.S., Can't Return to Canada

Former Hollinger International CEO Conrad Black arrives at the federal courthouse in Chicago on Thursday.

Scott Olson/Getty Images

Media mogul Conrad Black won't have to go to jail while he awaits sentencing for his recent convictions on charges of fraud and obstruction of justice. But he can't leave the United States -- meaning he can't go back to Canada.

The Financial Times reports that Judge Amy St. Eve allowed Black to remain free on his $21 million bond but said he had to stay "within the northern district of Illinois or the area surrounding his home in Palm Beach." She rejected a request from prosecutors that Black be jailed, saying she didn't think he would "run and hide." She did express concern, however, that Black might go to Canada and fight extradition back to the U.S.

But I'm pretty sure The Great White North isn't waiting with open arms. Although he was born in Canada, Black conducted a loud and rancorous slugfest with then-Prime Minister Jean Chretien's Liberal government several years ago about his desire to become Lord Black in the British House of Lords. (Canadian citizens are not permitted to accept foreign titles.) As the Toronto Star reports, Black ultimately renounced his Canadian citizenship in 2001, describing it as "an impediment to my progress in another more amenable jurisdiction."

It would not be an exaggeration to say that this annoyed the average Canadian. As a result, there is a "quiet feeling of glee" among Canadians over Black's conviction, Will Ferguson writes in an op-ed piece in The New York Times.

Last night, I called friends in four cities -- Toronto, Montreal, Halifax and Vancouver -- and asked what they would think about Black coming back to Canada. It was not a popular idea. As one friend put it, "He didn't want us; we don't want him."

Black will be back in court on Aug. 1. His lawyers plan to argue that he be allowed to return to Canada until his sentencing on Nov. 30.

9:39 AM ET | 07-20-2007 | permalink | comments (4) | e-mail post

Authorities Grant Stay of Execution for Ga. Man

Georgia's parole board has granted a stay of execution for a black man convicted of killing a white police officer in 1989, NPR reports. Troy Davis, 38, was scheduled to be executed by injection today.

The stay will be in effect while the board weighs the evidence presented as part of Davis' request for clemency, according to Agence France-Presse.

The Washington Post reports that police officer Mark MacPhail was working an off-duty shift in August 1989 when he went to stop a fight between two men in a Burger King parking lot. He was shot in the chest and face. Without any physical evidence, authorities used only the testimony of witnesses at Davis' trial.

Since the trial, however, three of four witnesses who testified that Davis shot the officer have signed statements contradicting their identification of the gunman. Two other witnesses who told police that Davis had confessed to the shooting have said they made it up. Other witnesses say it was another man at the Burger King that night.

Some legal experts say the Davis case show flaws in the system that have limited a prisoner's ability to have a death sentence reconsidered over the past few decades. Even after witnesses recanted, a U.S. District judge denied Davis' request for an evidentiary hearing, citing a federal law (the Antiterrorism and Effective Death Penalty Act of 1996) that limits such actions.

Former FBI Director William Sessions had submitted a written appeal on Davis's behalf, while Rep. John Lewis appeared at the parole board hearing, AFP reports. Nobel Peace Prize winner Archbishop Desmond Tutu spoke out against the execution, and the Council of Europe urged the United States to reconsider.

The Associated Press reports that MacPhail's widow condemned the parole board's decision, saying it set "a precedent for all criminals that it is perfectly fine to kill a cop and get away with it."

9:35 AM ET | 07-17-2007 | permalink | comments (2) | e-mail post

Has the Supreme Court 'Retired' A 50-Year-Old Practice?

There is considerable debate in online legal circles about a Supreme Court decision released Monday and whether it ends a 50-year-old practice in civil procedure that makes it easier for people to initiate lawsuits.

In Bell Atlantic v. Twombly, major telephone companies had been accused of conspiring to suppress competition.

The court decided in favor of what is now known as Verizon. But it also slammed a 50-year-old practice developed in a previous ruling that prevented lawsuits from being dismissed for failing to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Mostly used in what are called "notice pleadings," it meant plaintiffs only had to give "a short and plain statement of their cause of action" in their initial complaint. A plaintiff who had a good but not perfect case could put the other side on notice of a lawsuit and then collect evidence during discovery.

In this posting on the Civil Procedure Prof Blog, Professor Scott Dodson gives a quite readable overview for the lay person. Scotus Blog looks at the case as well and wonders if this means the end of notice pleading, which would have a considerable impact on the ability to sue a company.

2:54 PM ET | 05-24-2007 | permalink | e-mail post

The slow-motion Supremes

Here's a statistic that made me look twice. The number of signed opinions reached by the U.S. Supreme Court so far this term -- 71 -- is the fewest since 1866, according to a calculation by the folks over at SCOTUSblog.

Now that is a long time ago.

And according to two interesting postings at the blog, which looks daily at the workings of the Supreme Court, it seems next year might be even slower. That, author David Stras writes, is amazing when you consider the "extremely large caseloads in the lower courts."

Stras examines a specific problem created by this low workload -- put in laymen's terms, during certain times of the year, the Supremes realize that they haven't booked enough cases to hear, and so rush a larger number of cases to be heard in a relatively expedited timeframe. This, Stras argues, creates a problem, "... arguably leading to less thorough presentations by counsel. For small firms and solo practitioners especially, an expedited briefing schedule can be crushing in terms of workload."

Stras based his article on work done by Tom Goldstein, also at SCOTUSBlog: "Analysis: The State of the Court -- May 2007 -- Part I." The articles are a bit long (they are written by lawyers, after all), but are still very readable. And they are fascinating looks at how the court deals, or doesn't deal, with deciding which cases to hear.

1:36 PM ET | 05- 4-2007 | permalink | e-mail post