Duquesne University law school professor and interim dean Ken Gormley, who participated in a fall ACS panel discussion focusing on Louis Brandeis' influence on privacy rights, will be in Bethesda, Md., this week to discuss his book, The Death of American Virtue: Clinton vs. Starr. 

The New York Times' Janet Maslin writes of the book, "But by and large Mr. Gormley has packed his narrative with intense, overdue and definitive testimony about the still-surprising investigation of Mr. Clinton's activities spearheaded by Kenneth W. Starr." The Times' Sunday Book Review also featured Gormley's book. 

Visit the Barnes & Noble in Bethesda Thursday, March 18 at 7 p.m. to hear Gormley talk about his work. For more information about the book event visit Barnes & Noble's Web site here.

Video of the panel discussion, "Louis Brandeis and the Development of the Right to Privacy," which Gormley participated, is available here. Also watch video or download a podcast of an ACSblog interview with Gormley. 

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The New Yorker's Jeffrey Toobin explores the tenure Justice John Paul Stevens, the Supreme Court's "fourth-longest serving" justice in an article that contemplates a high court "without its liberal leader."

In an interview with Toobin, Justice Stevens reflects on his time on the bench, saying there are "dozens" of cases he is unhappy with. The justice signaled out Citizens United v. FEC, which overturned court precedent and found that corporations have similar First Amendment rights as individuals, at least in the area of campaign financing, District of Columvia v. Heller, which found that the Second Amendment provides a personal right to possess firearms, and Bush v. Gore, which decided the 2000 presidential election.

Stevens said the Court has lurched rightward since he joined it in 1975. "You don't have to ask me that," Stevens responded to Toobin's question on the tilt of the high court. "Look at Citizens United. If it is not necessary to decide a case on a very broad constitutional ground, when other grounds are available, then doesn't that create the likelihood that people will think you're not following the rules?"

Toobin maintains that the peak of Stevens' work centers on his decisions involving the treatment of military detainees:

In the 2004 case of Rasul v. Bush, among the first major cases to arise from Bush's war on terror-and the first time that a President ever lost a major civil-liberties case in the Supreme Court during wartime-Stevens wrote for a six-to-three majority that the detainees did have the right to challenge their incarceration in American courts. In his opinion, which was written in an especially understated tone, in notable contrast to the bombastic rhetoric that accompanied the war on terror, he cited Rutledge's dissent in the Ahrens case-which he himself had helped write, fifty-six years earlier. One of Stevens's law clerks, Joseph T. Thai, later wrote an article in the Virginia Law Review entitled "The Law Clerk Who Wrote Rasul v. Bush," which concluded that "Stevens's work on Ahrens as a law clerk exerted a remarkable influence over the Rasul decision."

Two years after Rasul, Stevens wrote the opinion for the Court in Hamdan v. Rumsfeld, in which a five-to-three majority rejected the Bush Administration's plans for military tribunals at Guantánamo, on the ground that they would violate both the Uniform Code of Military Justice and the Geneva conventions. (Roberts did not participate in that case, because as a judge on the D.C. Circuit he had joined the opinion that Stevens overruled.)
Stevens's repudiation of the Bush Administration's legal approach to the war on terror was total. First, in Rasul, he opened the door to American courtrooms for the detainees; then, in Hamdan, he rejected the procedures that the Bush Administration had drawn up in response to Rasul; finally, in 2008, in Boumediene v. Bush, Stevens assigned Kennedy to write the opinion vetoing the system that Congress had devised in response to Hamdan.

After the attacks of September 11, 2001, the Bush Administration conducted its war on terror with almost no formal resistance from other parts of the government, until Stevens's opinions. He was among the first voices, and certainly the most important one, to announce, as he wrote in Hamdan, that "the Executive is bound to comply with the Rule of Law."

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While scholars question the legal principles espoused by the Tea Party, some are celebrating the organization's role in democratizing discussions of constitutional principles.

"The content of the movement's understanding of the Constitution is not always easy to nail down, and it is almost always arguable," writes Adam Liptak in The New York Times. "But it certainly includes particular attention to the Constitution's constraints on federal power (as reflected in the limited list of powers granted to Congress in Article I and reserved to the states and the people the 10th Amendment) and on government power generally (the Second Amendment's protection of gun rights, the Fifth Amendment's limits on the government's taking of private property)."

According to Liptak, by focusing on these elements of the Constitution, the Tea Party is helping bring our nation's sacred document to the forefront of national, political conversations. If that is a goal of the Tea Party, it may not hurt to have Virginia Thomas on board.

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On March 10, 2010, ACS supporters gathered with the Oregon Lawyer Chapter to hear Professor Pam Karlan talk about a progressive vision of constitutional interpretation -- a vision she has embraced in her recent book Keeping Faith with the Constitution. Karlan (pictured) explained how her vision, which she termed "constitutional fidelity," confronts constitutional questions with an analysis of text, history and precedent, but also an appreciation for how society in the present day views a given issue and the real-world impact of Supreme Court decisions. In Karlan's view, that vision is both true to the Founders' intent, as well as modern day notions of justice, fairness, and constitutional meaning.

Karlan noted that "constitutional fidelity" is in large part a response to currently established doctrines such as textualism and originalism, which rejected the prior view of the "living constitution" as disjointed from text and history, and ultimately subject to the whims of individual judges. As Chief Justice Roberts put it, a judge should merely call balls and strikes. But Karlan explained that the baseball metaphor is a poor one, because calling balls and strikes itself is a subjective undertaking, subject to the sound judgment of the umpire -- just as deciding constitutional cases is subject to the sound judgment of the justices on the Supreme Court. Moreover, proponents of originalism and textualism frequently deviate from strict adherence to those doctrines when it would confound their preferred policy outcomes -- a level of individual input they claim to avoid. And originalists and textualists generally take into account all of the evidence that "constitutional fidelity" adherents would take account of -- it's just that they fill the blanks in with different, but no more valid, policy choices based on their own views.

The question becomes whether "constitutional fidelity" can gain ground against originalism and textualism. It can, but it will require a sustained program of support. Accordingly, as Karlan explained, it is not helpful when progressive judicial nominees embrace the baseball metaphor -- they ought to embrace the fact that a "wise Latina" adds a different perspective than another white male -- a perspective that will likely lead to different results in close cases. 

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"His silent presence on the bench has evolved into a weirdly compelling example of performance art," writes ACS board member Linda Greenhouse of Justice Clarence Thomas' persistent silence during oral argument. The fourth anniversary of Thomas' silence from the bench passed quietly last month, but not without being noticed.

Writing in The National Law Journal, Tony Mauro recently gave new life to a Florida Law Review article entitled "Why Justice Thomas Should Speak at Oral Argument." There, freshly minted law school graduate David A. Karp argued that Thomas' silence permits him to shield anachronistic or even bizarre legal perspectives from criticism. Rather than debuting his opinions during oral argument, the piece notes, where they could be challenged by counsel and his colleagues on the bench, Thomas saves his outlook from public scrutiny until it is proferred in an official opinion.

One such opinion, released last month, went overlooked until this week. In Wilkins v. Officer Gaddy, North Carolina inmate Jamey Wilkins alleged that he was "maliciously and sadistically" assaulted "[w]ithout any provocation" by a prison guard. The district court judge who initially reviewed Wilkins' allegations dismissed them, and the U.S. Court of Appeals for the Fourth Circuit affirmed this ruling in an unpublished one-paragraph opinion. 

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The use of the filibuster and other parliamentary maneuvers are on the rise to not only slow passage of legislation, but increasingly to delay action on judicial and other executive branch nominations. During an ACS panel discussion earlier this week, several experts explored the delaying tactics and their effect on the judiciary. The panel included Makan Deirahim, former chief counsel for the Senate Judiciary Committee, Martin Paone, former Democratic Secretary in the Senate, and Matthew Yglesias, fellow at the Center for American Progress Action Fund.

Yglesias, also a blogger at ThinkProgress, said:

Although the filibuster and cloture issue is technically about debate, and defenders of it talk about debate, I think it is worth being clear that actual debating of issues is almost invariably a red herring in these kinds of contexts.

When you have a minority of senators saying they we won't grant cloture on Craig Becker's nomination to the NLRB [National Labor Relations Board], that's not actually because they have more things they want to say about it. It's a tactic that you see has dual uses. One is to impose a super-majority requirement, to say that you can't pass a bill or confirm a nominee unless you have 60 senators, rather than 50. And the other, which in some ways I think has become more important and underrated, is to purely delay action. That the process of filing a cloture petition and letting it ripen takes quite a bit of time, particularly because you can sort of dual-track your refusal to grant unanimous consent and force multiple filings of petition to ever get to a final vote on an issue.

The entire panel discussion is available here or by clicking picture.

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Pushback continues over conservatives' attacks on Department of Justice attorneys who represented military detainees accused of terrorism before entering government service. The New York Times "Room for Debate Blog" includes comment from across the political spectrum supportive and critical of the attacks. In a post dubbed "Aiding the Enemy," National Review Legal Affairs Editor Andrew C. McCarthy took aim at lawyers who represented detainees accused of terrorism, writing, "Members of any other profession or institution would be indicted for coming to the enemy's aid during wartime. Lawyers not only demand immunity from the ordinary duties of citizenship, but they insist that you admire them, or, at the very least, regard them as above criticism for volunteering their services to those trying to kill Americans."

McCarthy's post triggered a sharp rebuke from George Washington University law school professor Orin Kerr, a former recipient of a prestigious Federalist Society award. On the conservative legal theory blog, The Volokh Conspiracy, Kerr blasted McCarthy's arguments as "ridiculous."

Taking on McCarthy's "basic argument that lawyers who represented detainees ‘aided the enemy in wartime,' and should normally be guilty of treason," Kerr wrote:

If that's true, isn't the federal judiciary, and aren't the Justices of the Supreme Court, also guilty of treason? In fact, aren't the judges the kingpins of this treasonous plot to "hurt the war effort"? After all, lawyers only make arguments to judges. It doesn't actually help detainees to make argument courts reject. It's up to the judges to rule one way or the other. If the lawyers are aiding the enemy, they're only minor players: It's the judges, and especially the Justices, who are the real guilty parties, as they're the ones that actually help the detainees by ruling in their favor. Does McCarthy think the Justices of the Supreme Court are guilty of aiding the enemy, and that (if we treat them like everybody else) they should be "indicted for coming to the enemy's aid during wartime"?

As noted by The New York Times, the controversy, which has been fueled by Sen. Charles Grassley's demands that Attorney General Eric Holder (above, left) release names and information of DOJ attorneys who have represented detained terrorism suspects, and Liz Cheney's group Keep American Safe, which produced an inflammatory YouTube video referring to the DOJ attorneys as the "Al Qaeda Seven," has revealed a split among conservatives. 

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The Senate Judiciary Committee unanimously endorsed a compromise to decrease the federal sentencing disparity for possession of crack versus powder cocaine today. Considering Sen. Dick Durbin's bill to eliminate the 100-to-1 sentencing ratio, Democrats acquiesced to an amendment proposed by ranking Republican Sen. Jeff Sessions (right), which would reduce the disparity to a 20-to-1 ratio. By a vote of 19-0, the committee reported a bill bearing the reduced disparity to the Senate floor.

The virtues of ending the sentencing disparity were laid out by Adam Serwer, in The American Prospect this morning: 

More than 20 years since the passage of the law [responsible for the sentencing disparity], the arbitrarily draconian penalties for crack cocaine have contributed to the increasing racial disparities in the U.S. prison system and helped swell the number of those behind bars to fully more than 1 percent of the entire U.S. population.

The sheer number of people behind bars isn't just busting state budgets; it's helped destroy families and neighborhoods with not much discernible effect on the drug trade.

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Property Outlaws

How Squatters, Pirates and Protesters Improve the Law of Ownership

By Sonia Katyal & Eduardo M. Peñalver

[Available Here]

Fifty years ago, on Monday, February 1, 1960, Ezell Blair, Jr., Franklin McCain, Joe McNeil, and David Richmond, all freshmen at the North Carolina Agricultural and Technical University, walked into the cafeteria at the Woolworth's Store in downtown Greensboro, North Carolina. They sat down at the counter and quietly waited for service. They received none. Blair, McCain, McNeil, and Richmond were black, and Woolworth's, although not required to do so by law, followed the local "custom" of refusing to allow its black patrons to eat at its lunch counter. Though they received no service, the four men sat quietly and without incident. When the store closed at 5:30, they left. The next morning, the four young men returned, along with sixteen other students from North Carolina A&T. By Thursday morning, the ranks of the sit-in participants had swelled to over sixty. Within a month, similar sit-in protests were occurring at department stores throughout the South. The fight for civil rights would never be the same.

What had been, as one contemporary put it, a civil rights movement dominated by lawyers working quietly in courtrooms had become a mass phenomenon. The student-led sit-ins thrust the civil rights question to the forefront of the 1960 presidential elections, and there is a direct line between the students' activism and the passage of Title II of the Civil Rights Act of 1964. That landmark law, which prohibits racial discrimination in most privately-owned businesses, radically transformed rights of private ownership in the United States and has become one of our most successful civil rights statutes.

It's easy, in hindsight, to downplay the controversy that surrounded the students' tactics, but, at the time, the Greensboro protesters were maligned from all sides as threatening sacred rights of private property and the rule of law in pursuit of what many commentators considered to be a trivial interest in access to lunch counter service. Such criticism did not come just from conservatives and segregationists. According to one account, when Thurgood Marshall heard about the sit-ins, he proclaimed that "he was not going to represent a bunch of crazy colored students who violated the sacred property rights of white folks by going into their stores or lunch counters and refusing to leave when ordered to do so."

Whether the Greensboro students knew it or not, in violating property rights as they did, they tapped into a long tradition within the history of Anglo-American property law. For as long as there has been private ownership, it seems, there have been groups who have sought to challenge the prerogatives of ownership in search of a more just social order. Sometimes these movements have succeeded. More often, they have not. But the pervasive influence of these property outlaw tactics on the development of American property doctrine cannot be denied. In Property Outlaws, we explore the sit-in episode (along with scores of other examples of property lawbreaking) to try to extract broader lessons about the interaction between disobedience and ownership.

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Judge Thomas Porteous became the fifteenth judge ever deterimined by the U.S. House of Representatives to have committed "high crimes and misdemeanors" -- the consitutional bar for impeachment. The House unanimously approved four articles of impeachment, today, against the New Orleans federal judge.

"The four proposed articles of impeachment accused Porteous of taking money, expensive meals and other gifts from lawyers and a bail bond company with business before him and making false statements in a personal bankruptcy filing," reports The Times-Picayune. "Though much of the 'improper conduct' occurred when he was a state judge, the [House] Judiciary Committee decided he had an obligation to disclose his actions during his nomination and confirmation process in 1994."

The articles of impeachment, recommended by the Judiciary Committee earlier this year, are now in the hands of the Senate, whose constitutional duty it is to conduct impeachment trials. After the trial, the Senate will then vote on whether to remove Porteous. Removal requires a two-thirds vote and would make Porteous only the ninth judge removed by the Senate.

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The practice of sentencing juvenile offenders of serious crimes to life in prison with no chance of parole is not effective and a different approach should be used, write the authors of a recent ACS Issue Brief. In "A Just Alternative to Sentencing Youth to Life in Prison Without the Possibility of Parole," Jody Kent, of the Campaign for the Fair Sentencing of Youth, and Beth Colgan, of the Institutions Project at Columbia Legal Services, write that no other country except America sentences juvenile offenders to life without the possibility of parole, a practice banned by the United Nations Convention for the Rights of the Child.

The authors cite the significance of research showing that juvenile offenders should be treated differently than adults:

Youth do not have adult levels of judgment, impulse control, or ability to assess risks. There is widespread agreement among child development researchers that young people who commit crimes are more likely to reform their behavior and have a better chance of rehabilitation than adults.

The U.S. Supreme Court is currently considering two cases involving the constitutionality of sentencing youth to life in prison without parole. Oral argument in Graham v. Florida and Sullivan v. Florida were heard in November and decisions in the cases are expected soon. For more on the constitutional issue in those cases, see a guest post from constitutional law expert Charles Ogletree here. 

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Today, following a spirited Senate Judiciary Committee hearing, in which Senators on both sides of the aisle debated the Roberts' Court recent decision in Citizens United v. FEC, the Constitutional Accountability Center ("CAC") released a new comprehensive report on corporations and the text and history of the Constitution. The report, entitled A Capitalist Joker: The Strange Origins, Disturbing Past, and Uncertain Future of Corporate Personhood in American Law, examines the text and history of the Constitution and the Supreme Court's treatment of corporations from the founding-era through the Court's recent decision in Citizens United. The report, which is available here, demonstrates that the Court's opinion in Citizens United is completely divorced from the text and history of the Constitution. In upcoming months, CAC and ACS will jointly sponsor a series of events designed to bring attention to the decision's departure from constitutional first principles.

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For the attorney mulling a jump into the blogosphere to expand business by trumpeting expertise, a recent ABA article, as noted by The Wall Street Journal, provides a good starting point. In "Memoirs of a Blogger," Mark Herrmann, an attorney and one-time legal blogger, offers tips on how to launch a blog and flags some pitfalls to avoid. As the WSJ article notes, however, Herrmann, who once blogged at the Drug and Device Law Blog, illuminates many drawbacks for launching a blog, such as finding enough topics to write about, carving a niche in a blogosphere that is always expanding and already is burgeoning with hundreds of millions, and keeping and attracting readers.

Herrmann writes:

Be provocative; be funny; be distinctive. Perhaps most importantly, don't be staid. A blog written by a committee of starched-shirt, bureaucratic lawyers might proclaim: "Our firm has the utmost respect for our learned adversaries, whose experience in complex, multi-jurisdiction litigation nearly matches our own." We'd write: "Those clowns couldn't spell ‘FDA' if you spotted ‘em two letters." We might not have much institutional gravitas, but we sure as heck have readers.

See the WSJ article for a link to Herrmann's pointers. 

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In an indictment recently unsealed, Justice Department officials accused Colleen R. LaRose of using the Internet to link up with overseas militants and plotting to commit murder. The case of LaRose, a resident of suburban Philadelphia, presents what The Christian Science Monitor reports as, "a rare example of a white American woman becoming involved in global jihad over the Internet."

The New York Times reports: 

Ms. LaRose, 46, was arrested in Philadelphia in October, but her case was kept under seal. Although the indictment does not identify the target, a law enforcement official said her case was linked to the arrests Tuesday of seven Muslims in Ireland in connection with a scheme to kill the cartoonist, Lars Vilks. A group linked to Al Qaeda had put a $100,000 bounty on his head for the cartoon, which the group perceived as an insult to Islam.

LaRose, who also went by the aliases "Fatima La Rose" and "Jihad Jane," had prior run-ins with the law in Texas, where she lived before moving to Pennsylvania in 2004. LaRose's prior arrests, both of which took place in 1997 according to CNN, seemingly bore no relation to any terrorist activity.

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Chief Justice John Roberts complained about President Obama's State-of-the-Union critique of the high court's decision in Citizens United v. FEC, saying the address had become too political. The Associated Press reported that following a speech to University of Alabama law students, Roberts responded to a student's question about the president's criticism of the decision. "To the extent the State of the Union has degenerated into a political pep rally, I'm not sure why we're there," Roberts said.

Roberts conceded that anyone is free to criticize Supreme Court rulings, but in this instance the surroundings called for muted or no criticism. "The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court - according [to] the requirements of protocol - has to sit there expressionless, I think is very troubling."

Several media sources following the State of the Union, noted that Justice Samuel Alito did not sit expressionless, mouthing the words "not true," to Obama's criticism of Citizens United. The decision invalidated decades of regulation of corporate campaign financing, making it easier for corporations to spend freely on electioneering.

The AP reported that White House press secretary Robert Gibbs, when asked about Roberts' comments, said, "What is troubling is that this decision opened the floodgates for corporations and special interests to pour money into elections - drowning out the voices of average Americans."

Recently, ACS hosted a national event focusing on the implications of the decision. Video of the event is here. Following the event, Professor William P. Marshall, a constitutional law expert, talked with ACSblog about what the decision reveals about the Supreme Court, and elections law expert Joseph Sandler focused on what the decision may mean for future elections. 

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