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constitutional law

It’s debunked by Adam Liptak’s sources in a good piece this weekend: “If judicial activism is defined as the tendency to strike down laws, the court led by Chief Justice John G. Roberts Jr. is less activist than any court in the last 60 years.” [New York Times; Jonathan Adler] More: Watch author Clark Neily, cited in Liptak’s article, speak recently at Cato about his new book Terms of Engagement.

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Three new books

by Walter Olson on October 3, 2013

No fewer than three friends of Overlawyered (and I’m probably forgetting some) have new books out on constitutional law and political theory. Clark Neily has just published Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government (more), Ilya Somin has just published Democracy and Political Ignorance: Why Smaller Government Is Smarter (review), and Josh Blackman has just published Unprecedented: The Constitutional Challenge to Obamacare (review; triple mini-review by Tim Sandefur of all three books with preview of two more). Congratulations to all!

Supreme Court roundup

by Walter Olson on August 30, 2013

  • Now with more detailed program descriptions: reserve your seat now for Cato’s 12th annual Constitution Day Sept. 17 in Washington, D.C.;
  • White House keeps losing SCOTUS cases 9-0, and there might be a lesson in that [Ilya Somin/USA Today, more]
  • “Another big term for amicus curiae briefs at the high court” [ABA Journal] “The Chief’s dissent reads over long stretches like something from the Cato Institute” [Michael Greve, Liberty Law Blog, on the administrative law case City of Arlington v. FCC, which was in fact one of the three cases where Cato's amicus position lost last term]
  • Ilya Shapiro on misconceptions about last term’s Shelby County case on voting rights [USA Today] and on the pending Schuette affirmative action case from Michigan [Cato]
  • “I count myself an originalist too.” — Justice Ruth Bader Ginsburg [CAC] Evaluating Ginsburg’s claim that the present Court is unusually activist [Jonathan Adler]
  • In Bond v. U.S., the treaty power case, Solicitor General urges high court not to overrule Missouri v. Holland [Nicholas Quinn Rosenkranz, more, earlier]
  • Cato seeks certiorari in cy pres (class action slush fund) case involving Facebook [amicus brief filed in Marek v. Lane, Ilya Shapiro]

I’m quoted in this report today in the Washington Times by Annie Yu:

“It’s often not realized that much of the civil rights movement in the 20th century was a movement for economic liberty against economic restrictions,” said Walter Olson, senior fellow at the Cato Institute’s Center for Constitutional Studies. “Many of the landmark decisions in the courts were on the basis of economic liberty.”

David Bernstein of George Mason has written in detail about how the old Jim Crow system was based on massive regulation of private economic decision-making, and how reformers often managed to chip away at it in court by invoking rights of contract, property, and free association. A sampling here and here (Buchanan v. Warley), here (labor regulations, and related), here, and in papers here.

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Writing at the New Republic, Simon Lazarus of the left-leaning Constitutional Accountability Center says “the recent surge of libertarianism among conservative academics, advocates, politicians and, of course, voters… has shown up among court-focused conservative constituencies and advocates and begun to register at the Supreme Court.” He cites the Cato Institute’s remarkably successful amicus curiae season (mentioned earlier in this space) and discerns in the majority an “appetite for doctrinal resets aimed at crippling federal regulatory power.”

In response, Randy Barnett, whose writings have been influential in advancing what libertarian tendencies may exist on the Court, writes “I wish it were so. … For a few reasons, the Court has become more ‘libertarian’ than its members.” Ilya Somin disputes Lazarus’s claim that the ObamaCare challenge invited the Court “‘to junk the “New Deal settlement” that bars constitutional interference with regulatory and safety net legislation.’ Even if the challengers had prevailed on every point at issue in that case, Congress would still have sweeping authority to regulate virtually any ‘economic activity,’ and state governments would have even greater regulatory authority than that.”

The new four-judge decision is unanimous, which means every judge to consider the matter has now agreed that the NYC Department of Health overstepped its legal powers. And they’re right, as I explain here at Cato. Earlier here, here, here, etc.

One person who presumably had not expected today’s result is Emily Bazelon at Slate, who has claimed that Judge Milton Tingling’s trial-court decision was somehow a venture into conservative activism. None of the New York appellate judges heard from today give evidence of sharing that view.

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In my new CNN.com piece I argue that we shouldn’t let anger over the Zimmerman acquittal shred the rights of criminal defendants: “awarding new powers to prosecutors will likely mean that more black people will end up behind bars.” [CNN](& Steele; thanks for Instalanche to Glenn Reynolds)

P.S. Some may wonder whether a toughening of hate crime laws might be an exception to the general rule that minorities have much to fear from a broadening of grounds for prosecution. Leaving aside whether the hate crime issue has any relation to the Martin/Zimmerman case (few lawyers believe Zimmerman could be found guilty of a hate crime, and when the FBI investigated him last summer it found no evidence of racial motivation; more on this from Michelle Meyer), per FBI statistics for 2011, blacks are actually overrepresented among persons charged with hate crimes, at 21 percent compared with 14 percent of general U.S. population.

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At Utah’s Deseret News, reporter Eric Schulzke writes on how “the U.S. Bill of Rights remains a work in progress 222 years after it became law — a continuing struggle between government claims for order and security, and the individual’s interest in clarity and freedom. This past year, the struggle played out in numerous areas, including free speech and search and seizure rules, to touch just a few.” He quotes me on the hope of bright-line rules establishing the public’s right to take pictures of law enforcement (recent Hawthorne, Calif. cause celebre here), on the need to focus on state and local police use of DNA databases before the inevitable abuses establish themselves, and on how four significant Fourth Amendment cases made it to the Supreme Court this year: “‘Here we are 200 years later, and a lot of big, interesting questions still haven’t been settled on what the Bill of Rights says about search and seizures,’ Olson said.” A sidebar reviews the year in civil liberties controversies.

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Free speech roundup

by Walter Olson on July 2, 2013

  • Paleo-diet blogger wins a round in battle with North Carolina occupational licensing [IJ via Alkon, earlier here, here, etc.]
  • If you live in Connecticut or Montana, you have a U.S. Senator who’d go this far to trample rights [Volokh on Tester-Murphy constitutional amendment, earlier] Related: “In Attack On Commercial Speech, Law Professor Sadly Supports Selective Rights” [Richard Samp, WLF, on Columbia's Tim Wu]
  • Lawyers sue publishers of medical literature for failing to warn about drug side effects [ABA Journal, Drug and Device Law]
  • “Anti-Bullying Bill Could Jail People Who Criticize Politicians” [Ted Balaker, Reason]
  • Regarding the L.A. Times: “So people are really suggesting a city council interfere to make sure a newspaper’s owners have the proper political views. Flabbergasting.” [@radleybalko]
  • “Judge: Rocker must pay Herald $132G in court costs for dismissed defamation suit” [Boston Herald] Second Circuit recognizes scientific-discussion defense to defamation claims [Science World Report]
  • “Does Freedom of Speech Conflict with Freedom of Religion?” [Jacob Mchangama video] “Turkish Blogger Sentenced to 13 Months in Prison for Criticizing Mohammed” [Volokh] So much repression: State Dept. International Religious Freedom Report for 2012 [executive summary]

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“Attention, liberals: The ACLU wouldn’t be able to sue the NSA if it weren’t for Citizens United.” [Wendy Kaminer, The Atlantic]

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A new project from the Federalist Society.

Max Kennerly outlines the implications for civil lawsuits when someone involved chooses to invoke 5th Amendment rights against self-incrimination.

  • The 173rd, maybe? “This is not the first time [Linda] Greenhouse has misrepresented the views of her opponents” [Ilya Somin; more from ABA Journal on federalism argument against DOMA as supposed anti-federal-power "Trojan horse"] Was it improper for trial judge Vaughn Walker and appeals judge Stephen Reinhardt not to have recused themselves from Prop 8 case? Legal Ethics Forum bloggers weigh in [John Steele, Richard Painter, etc.] Funny graphic by Cato social media team about Cato’s “odd couple” joint brief with Constitutional Accountability Center [CAC] “Right and Left Continue to Change Where they Stand on Standing” [Ilya Somin] And if you’re going to be on Capitol Hill this Friday and are interested in the DOMA and Prop 8 cases, be sure to attend the panel discussion at which I’ll be joined by Ilya Shapiro and Mary Bonauto;
  • On courts’ role in advancing liberty [Roger Pilon exchange with Ramesh Ponnuru] Incidentally, Cato’s “Mr. U.S. Constitution” is now on Twitter at @Roger_Pilon; and he discusses Cato’s high-profile SCOTUS amicus program [here]
  • Cook County official has creative theories about federal supremacy [Illinois Watchdog]
  • Amicus brief: Congress can’t assert perpetual jurisdiction over anyone and everyone, and that goes for ex-sex offenders too [Trevor Burrus]
  • “What are the Weirdest Constitutional Arguments Ever Asserted in Court?” [Orin Kerr and Volokh readers]
  • As Court considers voting act in Shelby County case, Chief Justice Roberts sees problem with pretending it’s still 1965 [Ilya Shapiro; more on VRA, 2010 Abigail Thernstrom backgrounder, National Affairs]

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  • If you didn’t see my Saturday post previewing the DOMA and Prop 8 cases that reach the Supreme Court this week, I’ve now got a virtually identical version up at the Cato blog.
  • On Wednesday, immediately after the Court’s oral argument in Windsor, I’ll be moderating a panel at Cato with former Republican National Committee head Ken Mehlman (NPR profile), Freedom to Marry founder Evan Wolfson (BuzzFeed profile), and Cato’s Ilya Shapiro (AFF profile). Details and RSVP here. If you’re in DC, don’t miss it! If not, watch live online at www.cato.org/live and comment via #CatoEvents.
  • A collection of links on the cases is currently headlining the Cato website.
  • I’ll be speaking Wednesday evening about the cases before the Washington, D.C. chapter of Log Cabin Republicans. I also expect to be doing some national broadcast commentary — details to follow.
  • Last week I spoke at a panel in Cato’s social media series with Jimmy LaSalvia (GOProud) and Trevor Burrus (Cato) on conservatives and same-sex marriage, on topics that included the changing poll numbers and demographics. Aside from going through my analysis of November’s election results, I commented on various aspects of the debate such as the difference between civil and religious marriage (“the same as that between a birth certificate and a christening,” I like to say), the non-connectedness of the gay marriage and abortion issues (on which many others seem to agree with me), and the issue of religious exemptions (“As libertarians, we’re ahead of the curve in considering how anti-discrimination law can trample freedom of conscience.”) No video at the moment.
  • By coincidence, that panel happened to be scheduled against a crosstown event making the opposite case at the Heritage Foundation, which suffice it to say is at a very different place from Cato on this topic. On the question of using 11-year-olds to try to tear down other people’s families, by the way, Rob Tisinai at Box Turtle Bulletin has a nice pre-rejoinder to Heritage: “But Gracie, no one is trying to take one of *your* parents away.”
  • I couldn’t help noticing the following from a March 22 Clarus survey of U.S. voters:

    “Do you think each individual state should be allowed to decide whether same-sex couples can legally marry, or not?”

    Should 53%
    Should not 45%

    “Do you think same-sex couples have a constitutional right to marry, or not?”

    Do 53%
    Do not 43%

    If these figures are to be credited, at least 6% of the voting public (and possibly much more) overlappingly believes both that same-sex couples have a constitutional right to marry, and that “each individual state should be allowed to decide” on that same question. I think it may be time for a refresher course in constitutional law.

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On Tuesday and Wednesday the Supreme Court will hear oral argument on Hollingsworth v. Perry, the challenge to California’s Proposition 8, and U.S. v. Windsor, the challenge to Section 3 (federal definition of marriage) of the Defense of Marriage Act. A Ninth Circuit panel, with liberal Judge Stephen Reinhardt writing, had invalidated Prop 8 on relatively narrow grounds; a Second Circuit panel, with conservative Chief Judge Dennis Jacobs writing, had invalidated Section 3 of DOMA on Equal Protection grounds.

The range of possible outcomes for the two cases is quite wide. At one end, the Court could reverse both appellate decisions, restoring the California ban on gay marriage and confirming the legal definition of marriage as opposite-sex-only for purposes of federal programs such as taxation (at issue in Windsor) and federal employee pensions. At the other end, the Court could apply Equal Protection Clause principles to declare that marriage licenses must be available in all states to all otherwise qualified couples regardless of sex. In between are many intermediate outcomes. Both cases, especially Perry, raise issues of litigant standing that might enable or require the Court to set aside the ultimate merits and render a decision with little or no precedential impact on future cases.
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I respond at Cato to a remarkably lame piece by Slate’s Emily Bazelon. Earlier on the case here and here.

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