Liberals Worst Nightmare?

Via Southern Appeal. Here’s a true “insider” view on Judge Roberts. Official roberts CJ.jpg

Over the past several years, I have feared this day, the day that a “movement conservative” President—one who sees Scalia and Thomas as his model justices—nominates a replacement for the Court’s comparatively moderate centrist, Justice O’Connor. But as I saw Judge John Roberts striding alongside the President on the way to the podium Tuesday night, I actually felt a sense of . . . excitement.

Why? Twelve years ago, I was fortunate enough to be a summer associate at the Washington, D.C. law firm of Hogan & Hartson. Our summer class consisted of about 35 second-year law students from around the country. It was an extremely capable group, and I often felt like I did not belong.

Each of us was assigned an official ‘mentor’ for the summer, a Hogan lawyer who would review our portfolio of memos, consult with the lawyers for whom we had worked, and generally oversee our progress toward gaining a permanent offer from the firm. John Roberts was my summer mentor.

Of course, this was a bit intimidating. Roberts was the former deputy solicitor general, a man who had been nominated for the D.C. Circuit (but who had not been confirmed), and who now was back in private practice. He was the head of one of the most prestigious appellate law practices in the country. Yet, he could not have been nicer, more gracious, more encouraging. He offered mentoring advice to a snot-nosed, 24-year-old law student as if it were the most important part of his job.

After returning to Stanford that fall, I was lucky enough to have my student note published in the Stanford Law Review. It was a rather presumptuous and self-righteous critique of the Supreme Court’s decision in Freeman v. Pitts, a school desegregation case from DeKalb County, Georgia. I argued that the Court was pulling the rug out from under Brown v. Board of Education by prematurely ending court-ordered desegregation remedies. As deputy solicitor general in the first Bush Administration, Roberts had actually argued the Freeman case as amicus in support of the school district. I therefore (again, fairly presumptuously) sent him my note, in which I contended that, well, Roberts had been all wrong.

A few weeks later, I received a two-page letter in response. Roberts wrote that the note was well researched and well written. (I was thrilled at the time, but I would now strongly disagree.) But he also offered a thoughtful critique of my analysis that was several paragraphs in length. This was more feedback than I had received from my professors in law school.

So I have nothing but a profound sense of respect for John Roberts: for his integrity, his intelligence, his humility, and his genuine human decency.

All of that said, my best guess is that he would be a very conservative justice. And because he is so gifted and so decent a human being, he might become incredibly influential on the Court, moving it in ways that justices like Scalia and Thomas have been incapable. In short, he could ultimately be a progressive’s worst case scenario.

So all of this leaves me quite conflicted. I am proud that a citizen of John Roberts’s ability and character has been honored by our President in a way that, in a sense, he so richly deserves. But at the same time, I harbor some deep reservations. It is unclear that a great person with impeccable credentials should, for those reasons alone, be seated on the Supreme Court. If he holds a very constrained view of the role of government in modern society, or of the fundamental liberties protected by the Constitution, his confirmation could turn out quite badly for the country.

No matter how much I admire him.

Schiavo Law Constitutional?

There seems to be an unusual shortage of substantive discussion about whether or not Public Law 109-3 was/is constitutional. A quick Technorati search turns up plenty of claims that the law was unconstitutional, but alas no coherent argument as to why this is the case. Sure the question is more or less moot at this point, but it is an interesting topic nontheless. After my initial inclination towards unconstitutional, I then began thinking along the same lines as Tim Sandefur. What’s the deal? Have I just somehow missed the substantive blawgospheric conversation on this subject? Fill me in guys.

To clarify, I’ve seen plenty half-assed attempts, to which I will not link. Also there has been plenty of talk about the law and federalism. What there hasn’t been is meaningful discussion of constitutionality similar to Tim’s post. Post some links in the comment section if you’ve found some good posts on the subject.

Constitutional Law II Medical Treatment / Right to Die. - ppt download


Anonymous Lawyer by Jeremy Blachman audiobookCongratulations to Jeremy Blachman on his new book deal. As I’m sure you’re aware Jeremy’s claim to fame was his infamous blog The Anonymous Lawyer. According to the report from Harvard Law School,

Jeremy BlachmanIn the days following the Times article [revealing that Blachman was the “Anonymous Lawyer”], he heard from two dozen book agents, all itching to capitalize on the buzz. In February, he settled on a deal with publisher Henry Holt and Co. to write the book version of Anonymous Lawyer. When interviewed for this story, he politely declined to say what the deal is worth.

“It will be like a ‘Bridget Jones’s Diary’–letters to the reader in blog form about this guy’s life at the firm,” said Blachman. Although the existing blog will serve as the source material, he says the book will have new stories and a plot.

Thanks to Evan for the heads up. So…where do we pre-order?

More Bipartisanship

Grits for Breakfast is reporting that a medical marijuana bill has been filed in the Texas legislature.

Today Austin Democrat Elliot Naishtat filed HB 658, which would provide an affirmative defense to prosecution in state court for patients possessing medical marijuana and for doctors who prescribe it. House Criminal Jurisprudence Committee Chairman Terry Keel, a Republican, also from Austin, will be a joint author.

Furthermore, Grits points to poll showing 75% of Texans support such a proposal.

Rules, Standards, and Principles

What is the Rule of Law? | World Justice Project

Legal Theory Blog has a useful post on the distinctions between legal rules, standards, and principles. While the three are often used interchangeably, a clear understanding of the distictions is helpful to say the least. What caught my eye was his discussion on the utility of the three types of “rules.”

Rules: Predictability and certainty. If your goal is ex ante predictability and certainty, then rules are usually the way to go. Predictability and certainty are particularly important when the law seeks to guide future conduct. For example, if we want to deter particular forms of conduct, we may do better to define the conduct in a rule (or in a set of rules) that would enable those who engage in the conduct to clearly see that the proscribed conduct is forbidden. Standards provide less guidance, and principles, almost no guidance at all.

Standards: Fairness and sensitivity. On the other hand, if our goal is to insure ex post fairness, then standards may be the way to go. Standards permit flexibility and the consideration of mitigating circumstances. Rigid rules are likely to lead to unfairness in particular cases, because it may be difficult to define in advance all of the circumstances which should count as exceptions to the rule.

Principles: The job of principles. Principles seem best suited for another sort of legal task. Principles cut across doctrinal fields. The same principle–one may not benefit from one’s own wrong, for example–may apply in torts, contracts, and the law of wills. Thus, principles are particularly well suited to give legal form to concerns which operate in a wide variety of particular contexts.

Justice Posner?

Apa Itu Justice Collaborator?

Via Prof. Ribstein. Steve Choi and Mitu Gulati analyze Richard Posner’s legal work and conlude the obvious: he’s heads above his colleagues.

This brief study cannot establish beyond doubt that Posner should be on the Supreme Court. We would assert that knowing a judge’s propensity to work hard, ability to write high quality opinions and willingness to stand up to colleagues are all important for the assessment of judicial merit. Because, Posner does so much better on most of those measures than everyone else, we ask why he isn’t at least on the President’s short list.

It appears as though Posner suffers from Learned Hand Syndrome. Presiden’t don’t seem to like judicial rock stars.

An interesting tidbit that the authors discovered is that while Posner publishes roughly 3 times more opinions than the average appellate judge he literally writes every word of his opinions.

Informal discussions with former law clerks and members of the judiciary confirmed this result: Posner apparently writes every single word of his opinions – not most words or the majority or words, but every single word!

Is Hillary Moving to the Center?

Everyone is jumping on the “Hillary is moving to the center” bandwagon. Hillary seems to be moving to the right on plenty of social issues: immigration, abortion, and religion.

However, we are not seeing a complementary move to the right on economic issues. There are no signs that she would back down from her long-time pet project “Hillary Care,” let alone any willingness to budge on Social Security reform. In fact she has explicitly stated her opposition to Social Security reform.

What I’m getting at is that Hillary isn’t moving to the so-called center. The problem, as I’ve often stated, is that the political spectrum isn’t really a spectrum. What Hillary is doing, rather, is shifting from liberalism to populism, which decrees government regulation of both personal and economic liberty.

Constitution in Exile II

Jack Balkin responds to the Constitution in Exile piece by Jeff Jamison at ACSBlog.

I think the notion that conservatives want to restore a “Constitution inJack M. Balkin Exile” is helpful on the one hand but also a bit misleading on the other. What Republican constitutionalists seek, I would argue, is not so much a pre-New Deal Constitution but a pro-business Constitution. That means that the New Deal precedents will not be completely rolled back, but rather will be narrowed in order to facilitate a conservative domestic agenda. Indeed, some New Deal innovations– particularly those regarding the increased scope of federal regulatory power, actually assist a pro-business agenda. Tort reform is a good example. The tort reform packages presently before Congress would have been unconstitutional according to the understandings of the pre-New Deal Constitution because they would have imposed too great an interference on state tort law, reaching, for example, both manufacturing and commerce.

Many have accused the “Federalism Five” as being judicial activists, but, like Balkin, I would argue that they are not steering the country to the far right. As I explained in a comment over at ACSBlog,

One could make the argument that there isn’t really a shift to the right in terms of jurisprudence, but rather that [the legislation involved in] Lopez and Morrison were so egregious, it was merely the court saying that there has to be a wall somewhere.


While yes the term interstate commerce in a modern economy means “virtually everything,” it does not necessarily mean “everything.” No one, not even Rehnquist, would suggest a return to the Schechter v. U. S. definition of interstate commerce. However, there does have to be a reasonable limit. Its not “radical” or “activist” to establish at least some sort of limit. The connection between guns in schools and interstate commerce is so attenuated that it is not at all “activist” to say that the connection does not exist(at least doesn’t exist firmly enough to warrant federal jurisdiction).

UPDATE: Arnold P. over at Demagogue discusses the Constitution in Exile in regards to Roe v. Wade.

I’m pro-choice as a political matter. And I appreciate the consequences that overturning Roe could have on many people’s lives, particularly those of young women without means. But much as I oppose the criminalization of abortion and the many ingenious ways conservative legislatures have found to make obtaining an abortion practically difficult, financially draining, and emotionally abusive, I don’t think judges should be intruding into the political struggle over the issue–even judges who share my views about the wisdom and morality of abortion bans.


It looks as though the Iraqi elections were a resounding success. If even the far left critics cannot see this then there is no hope for them. The Salafist terrorist movement was dealt a major blow today. Coverage of course is all over the blogosphere, but I really liked this quote by Andrew Sullivan,

The major revelation of the day, it seems to me is something that could have been predicted. And that is the impact of the actual experience of

voting, of getting your finger dyed, or sharing in a new and communal rite of democracy. Regardless of the results, that is in itself a success. Once people taste democracy, they will never forget it. That memory itself is an insurance against its future eclipse. Consciousness matters. And we have just seen a change in consciousness.

Also, here’s an idea thats been floated by one of Sullivan’s readers.

I’ve got an idea for you and the rest of the blogosphere. Why not ask people to wear blue marker on their index fingers this week, as a sign of solidarity and a tip of the hat to the courage of the Iraqis today?

I’m all for it.



Shorter Law Review Articles

Michael Dorf on shorter law review articles:

The new policy may be a step in the right direction, but there is reason to think that it will not produce all of the benefits its proponents seek. That is because the growth in article length in the first place was not driven primarily by the demands of the law reviews. Rather, it was mainly a supply-side phenomenon–driven by the efforts of the professors writing the articles to make their work comprehensible both to the novice student editors who select which articles to publish and the undifferentiated mass of their colleagues who make tenure decisions.

Restricting article length without addressing the factors that caused articles to grow longer may thus have unwanted consequences. Professors won’t stop catering to law student journal editors, but now they will feel compelled to do so in briefer pieces. And as I explain below, that part of the law review article that will, as a result, get short shrift, may be the most valuable part of all.

Hogwash! If nobody reads the damned things it doesn’t matter how much info you stick in.