Archive for the ‘Uncategorized’ Category

Dispute Over Scope of Hastings Policy Underscores Narrowness of ‘Martinez’ Decision

Wednesday, June 30th, 2010
Muddying any straightforward understanding of Monday's Supreme Court decision in Christian Legal Society v. Martinez is the fact that there were, at various times, at least two distinct policies at issue at the University of California Hastings College of the Law. The majority opinion, authored by Justice Ruth Bader Ginsburg, addressed Hastings' "all comers" policy, whereas the dissent, written by Justice Samuel Alito, pointed out that CLS was initially punished under Hastings' nondiscrimination policy. This confusion in the record, which the Ninth Circuit Court of Appeals will have to sort out on remand, renders the Supreme Court's decision a narrow one, for reasons I will explain.

As David French explained on Monday, the Christian Legal Society was initially derecognized by Hastings because its membership requirements allegedly violated the school's nondiscrimination policy. This policy prohibited, among other things, discrimination on the basis of religion and sexual orientation.

However, during the course of litigation, CLS and Hastings stipulated that CLS was actually derecognized under a separate "all comers" policy, which prohibited all student groups from excluding any students as members or leaders for any reason. It was this broader policy that the Ninth Circuit Court of Appeals considered in its 2009 decision...

The Kagan “Smoking Gun”? Hardly

Wednesday, June 30th, 2010

It seems that the Right is all agog over this article in the "National Review" by Shannen Coffin, claiming that Elena Kagan "manipulated the statement of a medical organization to protect partial-birth abortion" while working in the Clinton White House.

Here is the gist of Coffin's "bombshell":

There is no better example of this distortion of science than the language the United States Supreme Court cited in striking down Nebraska’s ban on partial-birth abortion in 2000. This language purported to come from a “select panel” of the American College of Obstetricians and Gynecologists (ACOG), a supposedly nonpartisan physicians’ group. ACOG declared that the partial-birth-abortion procedure “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman.” The Court relied on the ACOG statement as a key example of medical opinion supporting the abortion method.

Coffin points to this draft copy [PDF] of the ACOG statement which does not include the phrase “[An intact D & X] may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman." Instead, that phrase was handwritten in as a suggestion ...

Not Activism, Patriotism

Wednesday, June 30th, 2010

[Thurgood Marshall] taught us all what it means to love our country enough to work to make it a little better, a little stronger and a little closer to what it's supposed to be. That's not activism. That's patriotism.

Stephanie Jones’ op-ed in the Washington Post this morning explains perfectly why the Republican line of attack against Justice Marshall is so, so wrong. All senators who have hopped on to the anti-Marshall train this week need to read it, and then explain themselves.

Kagan: Judges Have to Exercise Judgment

Wednesday, June 30th, 2010

Sen. Amy Klobuchar asked Solicitor General Kagan this morningwhat she thinks of Chief Justice Roberts famous “balls and strikes” metaphor of judging. Kagan answered that the metaphor is correct in that judges have to be neutral and fair, and “realize that they are not the most important person in the system of government.”

But, she added, she disagreed that judging is a “robotic” enterprise…especially in the tough cases that come before the Supreme Court.

“Judges do have to exercise judgment,” Kagan said, “They're not easy calls. That doesn't mean that they're doing anything other than applying law. … But we do know that not every case is decided 9-0, and that's not because anybody's acting in bad faith. It's because those legal judgments are ones in which reasonable people can reasonably disagree sometimes.”

It’s nice to hear a nominee and a senator discussing the Court’s work in an honest—and nuanced—way.

[Updated with polish transcript]

New campaign puts First Amendment first

Wednesday, June 30th, 2010
Nationwide, nonpartisan effort launching today fosters understanding of First Amendment freedoms through media, education, campus events.

FCC rejects air time for extremist Senate hopeful

Wednesday, June 30th, 2010
Agency finds Frazier Glenn Miller Jr. isn't 'bona fide' candidate entitled to mandatory access to Missouri's broadcast airwaves.

Coburn Wants the Supreme Court to Stop Congress from Spending

Tuesday, June 29th, 2010

Senator Tom Coburn just launched an . . . interesting line of questioning against Elena Kagan, claiming that the Supreme Court has a broad mandate to stop Congress from running up a national debt.

SCOTUSblog’s initial notes of Coburn’s statement:

The Commerce Clause has gotten us to a place where we'll have a $1.6 Trillion deficit for our kids to pay. We have this expansive cost, and we have to have some limit on it. If the courts aren't going to limit within original intent, we have to throw out most of the Congress.

Actually, Senator Coburn, the American people do have a way to “throw out most of the Congress” if we’re unhappy with what they're doing. In fact, we get a chance to do it every two years.

Senator Cardin, following Coburn, put it just right: “His definition of original intent is similar to some of my colleague’s definition of judicial activism . . .  you use it to get results.”

Sita Sings The Blues: A Benefit Screening Hosted by Nina Paley on July 20, 2010

Tuesday, June 29th, 2010

Join the Electronic Frontier Foundation and the Cartoon Art Museum for a special evening with Nina Paley as we screen her award-winning animated feature film "Sita Sings the Blues," described by the creator as "the greatest breakup story ever told." Paley animated and produced the film single-handedly over the course of five years on a home computer, and will be on hand to take filmgoers behind the scenes.

The benefit screening will take place at the Delancey Street Foundation Screening Room at 600 The Embarcadero, San Francisco, CA 94107 on Tuesday, July 20, 2010. Doors open at 6:30 PM. Film begins at 7 PM. Advance tickets may be purchased online for $25 at, or for $30 at the door the night of the screening. No food or drink is permitted in the screening room.

A 2006 Guggenheim Fellow, Nina will also screen three of her Minute Memes, a series of animated shorts about intellectual freedom, including the premiere of a new cartoon created by Nina especially for the Electronic Frontier Foundation.

Nina Paley is a longtime veteran of syndicated comic strips, creating Fluff (Universal Press Syndicate), The Hots (King Features), and her own alternative weekly ...

Outdated Stereotypes and Gender-Based Discrimination in Flores-Villar v. United States

Tuesday, June 29th, 2010

On Monday, People For the American Way Foundation signed on to an amicus brief urging the Supreme Court to reverse the Ninth Circuit’s decision to enforce a section of the Immigration and Nationality Act that imposes a greater residency requirement for unmarried citizen fathers to transfer citizenship to their children born abroad than on unmarried citizen mothers.

The statute permits unmarried citizen fathers to transmit citizenship only if they have lived in the U.S. prior to the child’s birth for ten years, five of them after the age of 14. Mothers, on the other hand, are only required to have lived in the U.S. for just one year prior to the child’s birth. The petitioner’s father was 16 when his son was born, making it impossible for him to meet the requirement of five years of residency after age 14. Mr. Flores-Villar filed suit on the grounds that the law violates the equal protection component of the Fifth Amendment’s due process clause.

PFAWF’s brief, authored by the National Womens’ Law Center, argues that such gender-based discrimination perpetuates the old stereotype that unwed fathers have less meaningful relationships with their children than do unwed mothers, and the Supreme Court has rejected ...

Any Group With Just 15% Support Should Not Be Calling Anyone an “Ideologue”

Tuesday, June 29th, 2010

Outside of the incessant Twittering of the Judicial Crisis Network's Carrie Severino, I haven't seen much commentary from the Right on Elena Kagan's hearing today ... and the few things I have seen have tended to be along the line of this ridiculous press release from the American Life League:

"Elena Kagan has revealed herself as the pro-abortion activist she is. The 'health of the mother' exception has long been code for abortion on demand for any reason under the sun - including financial 'health.'

"Kagan's position is clearly opposed by the majority of Americans who self-identify as pro-life. While we are not shocked that an Obama nominee would be anything but rabidly pro-death, we are compelled to demand representation from our elected leaders: this pro-abortion ideologue is not fit to serve on the Supreme Court.

While poll results may show that a bare plurality of Americans consider themselves "pro-life," a whopping 80% believe that the option should be available in certain circumstances ... like for "the health of the mother":

Only 15% believe abortion should be illegal in all circumstances, which is the position held by the American Life League .. and yet ALL claims that it is Kagan who is the ...

RNC v. FEC: Court Decides Against Soft Money, But Barely

Tuesday, June 29th, 2010

As Miranda reported back in May, the Citizens United decision mobilized its proponents in the direction of securing more rights under the First Amendment. The specific target? Soft money contributions.

In the case, RNC v. FEC, the RNC and several affiliate groups argued political parties should be allowed to raise and spend unlimited "soft" money contributions for purposes other than influencing national elections.

The RNC, the CA GOP and the San Diego Co. GOP had claimed they should be allowed to raise the money for redistricting, non-federal state elections and grassroots advocacy. A 3-judge panel in DC Circuit Court ruled unanimously against the RNC earlier this year. Only 3 members of the Supreme Court wanted to hear the case; 4 members must approve for the Court to accept a case.

The Court’s decision today not to take the case – with Scalia, Thomas and Kennedy on the other side - is a slim victory for the American people, already harmed by the harsh reality of the Roberts Court’s pro-corporation bent. We should temper our happiness, however, given the fact that a similar case is already pending in another circuit court, and pro-corporation groups are energized about its ...

Justice Thomas, Activist

Tuesday, June 29th, 2010

Tom Goldstein at SCOTUSblog has done an impressive analysis of the Supreme Court’s decisions this term, and found several surprising results. Among these is pretty clear evidence that Justice Clarence Thomas, one of the most conservative Justices on the court, is also by far the most willing to rewrite established law and overrule judicial precedent:

Among all the Justices, it is in fact Scalia and Thomas – frequently heralded by conservatives as ideal members of the Court – who hesitate the least in invalidating legislation or (with respect to Thomas) calling for the overruling of prior precedent. They not only joined the Citizens United majority, but they would also have held unconstitutional the “honest services” statute (Skilling), the civil commitment statute (Comstock), and the ruling upholding a beach-erosion statute (Stop the Beach).

Just as fascinating is Justice Thomas’s openness to reconsidering almost every issue in the law that he views as wrongly decided. This Term, he wrote eight separate opinions suggesting the reconsideration of existing law: McDonald (incorporation); Berghuis v. Smith (fair cross-section requirement for juries); Milavetz, Gallop & Milavetz v. United States (commercial speech); Maryland v. Shatzer (custodial interrogation); Mohawk Industries v. Carpenter (interlocutory appeals); Carachuri-Rosendo v. Holder (immigration); ...

Kagan Defends Marshall

Tuesday, June 29th, 2010

As we and others have noted, many Republican Senators have adopted the perplexing tactic of attacking Kagan’s strong ties to civil rights giant and Supreme Court Justice Thurgood Marshall. Today, Kagan masterfully defended Justice Marshall’s judicial philosophy against Senator Kyl’s accusations of judicial activism.

Senator Kyl accused Justice Marshall of favoring the disadvantaged over the powerful – a critique that may reveal more about Senator Kyl than Justice Marshall. But as Kagan put it, Justice Marshall’s philosophy wasn’t about unfairly advantaging one group over another – it was about the “Court taking seriously claims that were not taken seriously anywhere else.” I think all of us, with the possible exception of Senator Kyl, can be glad that the Court gave Marshall and his colleagues a fair hearing in Brown v Board.

In ‘Martinez,’ Justice Ginsburg Disregards Serious Threat of Hostile Takeovers

Tuesday, June 29th, 2010

As FIRE detailed in yesterday's press release, the Supreme Court in Christian Legal Society v. Martinez upheld the University of California Hastings College of the Law's denial of Registered Student Organization (RSO) status to the Christian Legal Society because the student group did not follow the school's "all-comers" policy. This all-comers policywhich we'll discuss further in a forthcoming blog postrequires student groups to open their membership to all students in order to receive RSO status, no matter how antipathetic a particular student's views are to those of the group. This means that at Hastings, CLS, a distinctly Christian group, must now accept as voting members and leaders any student who might be opposed to the mission of the group if it wants to receive access to university benefits afforded to other groups. (The same is true for all groups at Hastings, including political groups.) This is a resounding blow to students at Hastings College of the Law who wish to exercise their First Amendment right to expressive association.

Justice Ruth Bader Ginsburg, writing for the narrow five-member majority, found that the all-comers requirement was constitutional because it was judged reasonable in light of the purposes of ...

Bilski v. Kappos: The Supreme Court Declines to Prohibit Business Method Patents

Tuesday, June 29th, 2010

Ending months of anticipation, yesterday the U.S. Supreme Court finally issued a ruling in Bilski v. Kappos, a business method patent case that, many hoped, would give the Court an opportunity to sharply limit these much maligned patents, or at least offer clear guidance on how business method patents are to be judged in the future. Unfortunately, the Court did neither one.

By way of background, Bernard Bilski and Rand Warsaw applied for a patent on methods for hedging risks for commodities trading. The Patent Office rejected their patent application as covering an abstract idea not eligible for patent protection, under § 101 of the Patent Act. Bilski appealed to the U.S. Court of Appeals for the Federal Circuit (CAFC). The CAFC affirmed the Patent Office’s rejection of the patent application. The CAFC adopted a “machine-or-transformation test” to judge patentability: a patent applicant “may show that a process claim satisfies § 101 either by showing that his claim is tied to a particular machine, or by showing that his claim transforms an article.”

Bilski then appealed to the Supreme Court. EFF joined an amicus brief arguing that patents should only be granted for technological processes. Such technological processes advance ...

Sessions: Citizens United was just like Brown v. Board!

Tuesday, June 29th, 2010

You do have to feel for the big corporations who were being discriminated against before the Supreme Court decided they could spend unlimited amounts of money in elections, right? Jeff Sessions, for one, is standing up for corporate underdogs who have fallen victim to moral injustice. Talking Points Memo reports:

Last night, elaborating on his criticisms of former Supreme Court Justice Thurgood Marshall, Sessions made the unusual comparison of Citizens United v. FEC to Brown v. Board of Education of Topeka.

"[Marshall] was right on Brown v. Board of Education. It's akin in my view to the Citizen's United case. The court sat down and we went back to first principles--What does the Constitution say? Everybody should be equal protection of the laws," Sessions told me after a Senate vote last night.

"Is it treating people equally to say you can go to this school because of the color of your skin and you can't?" Sessions asked rhetorically. "We've now honestly concluded and fairly concluded that it violates the equal protection clause."

Come again?

Let’s break this down into a few points that I guess we shouldn’t assume are obvious:

  1. Brown v. Board of Education ended the systematic ...

Law Professor Richard Epstein Weighs in on ‘CLS v. Martinez’

Tuesday, June 29th, 2010
FIRE has already provided one summary of the preliminary reactions to the Supreme Court's decision in the case of Christian Legal Society v. Martinez, and the commentary continues to flow. Richard Epstein, the James Parker Hall Distinguished Service Professor of Law at the University of Chicago and the Laurence A. Tisch Professor of Law Designate at New York University Law School, served as counsel of record for the libertarian Cato Institute's amicus brief in support of CLS. Today, Professor Epstein adds his critical take on the decision in a column for Forbes.

Regarding the narrow yet perilous path the Court charted in ruling against CLS, Epstein writes:

As a general matter of First Amendment theory, it is always easier for a group to show that its rights to speech and religion are infringed when the group is singled out for special treatment. That singling out makes it easier for the dominant faction inside any organization to impose harmful restrictions on others that they themselves do not have to bear. A rigorous nondiscrimination rule thus tempers the enthusiasm of a dominant political faction by forcing it to play by the same rules it wants to impose on its opponents.

It ...

Free Enterprise Fund v. PCAOB: The Pro-Corporation Court Strikes Again

Tuesday, June 29th, 2010

Yesterday, the Supreme Court held that the Public Company Accounting Oversight Board’s mechanism for removing its officers violated the constitution. Formed by the Sarbanes-Oxley Act, in response to the Enron scandal, the PCAOB has been challenged since its inception. Today’s ruling is another signal from the Roberts Court that the rights of corporations are more important than the rights of individuals. The Court ruled that since the PCAOB’s members are appointed by the Securities and Exchange Commission, and not removable by the President except for cause, such an arrangement violated the Constitution’s separation of powers. According to the Wall Street Journal:

Congress had given the five-member board, a not-for-profit corporation, broad regulatory authority over accounting firms that audit publicly traded companies. . . .

Roberts said the structure of the accounting board violated constitutional separation-of-powers principles because it was too difficult for the president to remove board members.

The majority did not invalidate PCAOB completely, finding that the offending provision was severable from the other parts of the statute.  But as Breyer’s dissent points out, the Court’s ruling “threatens to disrupt severely the fair and efficient administration of the laws” because the decision struck down protection for members from ...

Kyl and Activism

Tuesday, June 29th, 2010

John Kyl says that senators have been talking about the “alleged activism” of the current Court.

I think we can just go ahead and call it “activism.”

Hatch Misses the Point

Tuesday, June 29th, 2010

Senator Hatch spent most of his allotted questioning time trying to refute what he called “misstatements” by critics of the Supreme Court’s decision in Citizens United. Particularly, he tried to defuse claims that the decision permits foreign corporations to heavily influence the outcome of our elections by getting Kagan to admit that the case itself didn’t involve a foreign corporation.

Kagan readily agreed, since it is a matter of record that the plaintiff in the case was a domestic corporation and not a foreign corporation. But he cut her off when it looked as if she was going to continue. Most likely, he didn’t want to hear that his question missed the point.

The conservative majority in Citizens United held that corporations have the same First Amendment political speech rights as individuals and that they are now allowed to make unlimited independent expenditures from their general corporate accounts. There was no limitation in the decision that would prevent a U.S. company that is a subsidiary of a foreign corporation – or controlled by one – to pour millions of dollars into our elections to further foreign interests.

This very real loophole is why it is imperative for Congress to ...

Offense vs. Free Speech

Tuesday, June 29th, 2010

Conable Scholarship recipient Aubrey Madler has been blogging her thoughts about the ALA Annual Conference throughout the week.  This is the final installment.

I absolutely loved Monday afternoon’s session, Blasphemy!: When Religious Values Clash with Intellectual Freedom. Both speakers (Irshad Manji and Paul Sturges) were excellent—they entertained me—they captured my undivided attention with their topics of thought. Part of what they spoke about was our right to offend and that by not acting upon that right, we destroy our own intellectual freedom—our freedom of speech. As Irshad said, offense is not bad. It creates the opportunity for deeper thought.

Similar to my comment in a previous post about the difficulty to read and access challenging/different things, it is difficult to start the conversations, and therefore all the more important. It takes brave people to exercise their right of free speech and ask the arduous questions (not only write about them) with the utmost of respect and clarity.

I closed out the day with the 40th Anniversary Merritt Fund dinner at the Folger Shakespeare Library. I heard an emotional story from a librarian who was under scrutiny for hindering an investigation because she would not relinquish computer ...

First Reactions to ‘CLS v. Martinez’

Tuesday, June 29th, 2010
Reactions to today's Supreme Court decision in Christian Legal Society v. Martinez have lit up the Web. The Chronicle of Higher Education and have posted articles detailing the case, and Reason's Jacob Sullum and the Cato Institute's Roger Pilon have supplied summaries of the ruling.

For our part, here's FIRE President Greg Lukianoff's response from our press release:

"FIRE is deeply disappointed by the Supreme Court's decision in Christian Legal Society v. Martinez. For all of the reasons stated in our brief, we believe the practical effect of this case will be the derecognition of devoutly religious groups-especially evangelical Christian groups. This is a loss for diversity and pluralism on campus, not a win," said FIRE President Greg Lukianoff. "FIRE will continue to fight for the rights of expressive campus organizations to form around shared beliefs and for the principle that the College Democrats have the right to be Democrats, the College Atheists have the right to be atheists, and the College Christians have the right to be Christians."

Erica Goldberg, FIRE's Justice Robert H. Jackson Legal Fellow, offers her initial impression of the ruling here on The Torch, focusing on Justice Kennedy's concurring ...

Justices let Vatican sex-abuse lawsuit move forward

Tuesday, June 29th, 2010
Holy See had asked high court to dismiss case, which claims Vatican bears legal responsibility for molester priests.

7th Circuit: White supremacist can be charged for Web post

Tuesday, June 29th, 2010
Court says whether or not First Amendment protects William White depends upon whether he intended for one of his readers to harm juror.

Republicans challenge Kagan on military at Harvard

Tuesday, June 29th, 2010
Democrats also ask Supreme Court nominee about her article saying hearings should pursue 'substantive inquiry' of potential justices.

High court reaffirms ‘soft money’ ban

Tuesday, June 29th, 2010
Three justices — Kennedy, Scalia and Thomas — said they would have heard Republican Party's appeal.

Kennedy’s Concurrence in ‘Martinez’ Highlights Court’s Misguided Views on Role of Student Organizations

Monday, June 28th, 2010

Justice Anthony Kennedy, a relative moderate on the Supreme Court and a swing vote in many 5-4 decisions, was the only non-liberal Justice to join the majority opinion in Christian Legal Society v. Martinez. He was most likely the decisive vote in today's decision. He was the Justice to whom the parties and the other Justices likely were trying to appeal, and therefore his opinion arguably matters most. Justice Kennedy's brief concurrence illuminates why he ultimately decided that the First Amendment right to expressive association does not bar the University of California Hastings College of the Law from requiring student organizations to accept all comers as members.

In keeping with Justice Ruth Bader Ginsburg's majority opinion and Supreme Court precedent, Justice Kennedy recognized that student organization programs comprise limited public forums. In such a forum, restrictions on freedom of speech and association and denials of funding must be unrelated to viewpoint and reasonable in light of the purpose of the forum. In Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819 (1995), for example, the Supreme Court held that a university's denial of funding to a student newspaper that advocated religious views was ...

Senator Robert Byrd, Father of Constitution Day, Dies at 92

Monday, June 28th, 2010
Senator Robert Byrd, the longest-serving member of Congress in United States history, passed away today at the age of 92. Among his many actions during his sixty-plus years in the U.S. House of Representatives and Senate, one that may slip past the obituary pages is the creation of Constitution Day, designating September 17 as a day to "commemorate the formation and signing on September 17, 1787, of the Constitution and recognize all who, by coming of age or by naturalization, have become citizens."

Constitution Day is a welcome opportunity to educate students at a time when miseducation and misapplication of constitutional rights has become too common. FIRE looks forward to seeing how the day will be commemorated on college campuses this yearas they must, by law, which some might see as paradoxical. Of course, FIRE will continue our efforts to remind our nation's college students, faculty members, and administrators that we do not need a national holiday to remind us of the rightful place the Constitution occupies in our colleges and universities.

Judicial Activism?

Monday, June 28th, 2010

In response to the GOP’s repeated accusations of Elena Kagan’s so-called judicial activism, Senator Dick Durbin (D-IL) fired back with a quote from Justice John Paul Stevens’ sharp dissent in Citizens United: “Essentially, five Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”

As Senator Durbin pointedly noted, the Court’s reversal of decades of precedent was “espoused by men who swore they would never engage in judicial activism” – men like Chief Justice John Roberts, who during his own confirmation hearings spoke about how judges are like umpires because they “don’t make the rules; they apply them” and must have “the humility to recognize that they operate within a system of precedent”…and then went on to author the majority opinion in Citizens United.

“If that isn’t judicial activism,” said Durbin, “then I don’t know what is.”

And as for the “well-known activist judges” with whom Ms. Kagan has been “associating”, Sen. Durbin spoke out against Republicans’ criticism that Kagan might be a judge in the mold of Thurgood Marshall, for whom she clerked.  He praised the former justice, citing his critical ...

Kagan’s Policy Experience

Monday, June 28th, 2010

In his opening remarks in the Elena Kagan nomination hearings, Sen. Jeff Sessions (R-AL) expressed concern about Gen. Kagan’s lack of judicial experience. Additionally, he chose to chastise her for opting to take jobs in the policy arena.

Professor Kagan left teaching law to spend five years at the center of politics, working in the Clinton White House, doing – as she describes it – mostly policy work… In many respects, Ms. Kagan’s career has been consumed more by politics than law.

How conveniently Sen. Sessions forgets that the Chief Justice of the United States, John Roberts, served in both the Reagan and H.W. Bush administrations, and also was a part of Bush Sr.’s Office of White House Counsel. Even more alarmingly, Jeff Sessions doesn’t seem to mind that Roberts flew to Florida in 2000 to stop the recount in the presidential election.

The GOP’s double standard becomes clearer and clearer.


Coburn and Strict Construction

Monday, June 28th, 2010

Senator Tom Coburn used his opening statement to lecture Solicitor General Kagan on the importance of "strict constructionism."  But maybe before conservatives continue to flog that particular buzz word, they should make sure make sure that the judges they point to are on the same talking points.

Notably, the Justices who are most often cited as strict constructionists themselves reject the term. Justice Scalia has called strict constructionism “a degraded form of textualism,” declaring: “I am not a strict constructionist, and no one ought to be . . . . A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means.  Justice Thomas considers himself an originalist and has not hesitated to construe the text of the Constitution broadly, not strictly, when it comes to executive power and state sovereign immunity.”


Cornyn Defines Activism

Monday, June 28th, 2010

Sen. John Cornyn was waxing indignant a few minutes ago about what he calls the “activist vision” of certain judicial nominees.

He helpfully defined his terms:

“This activist vision takes the power from the people to make the law and change the law and gives it to the judiciary.”

Cornyn was no doubt shocked, then, by the Rehnquist Court’s decision in Bush v. Gore, in which it called off the counting of votes in a presidential election. Or by the Roberts Court’s decision in Citizens United v. FEC, in which it limited the power of democratically elected bodies to make rules about who spends money in elections.

It must be difficult for Cornyn to see judges appointed by presidents of his own party fall into that kind of activism.

Lauren Myracle highlights Library Advocacy Day on the Hill

Monday, June 28th, 2010

Young adult author (and great friend to OIF and the Freedom to Read Foundation) Lauren Myracle will be speaking at ALA’s Library Advocacy Day tomorrow (Tuesday, June 29) at 11:00 a.m. on the U.S. Capitol Grounds in Washington, DC. More than 1,000 librarians from across the country will defy the stereotype of their “quiet profession” and stand up for the needs of the public during this event.

The rally is open to the public.  Other speakers include U.S. Rep. Vern Ehlers (MI-3) and ALA President Camila Alire.

After the rally, ALA members will meet with their members of Congress and their staffs to drive home the needs and concerns of the libraries in their communities. For more information about the event, and to register, go to

Lindsey Graham and Extraordinary Circumstances

Monday, June 28th, 2010

In his opening comments, Lindsey Graham raises the agreement reached by the Gang of 14 and the standard they set: that filibusters of judicial nominees could be allowed only in extraordinary circumstances.

Senator Susan Collins has already said that she doesn’t think that the “extraordinary circumstances” threshold has been met by Senator Kagan’s nomination, which should be obvious to any impartial observer.

But we shouldn’t forget that most Republicans didn’t embrace the standard set by the Gang of 14. They argued that a filibuster of a judicial nominee was unconstitutional in all cases. It wasn’t about politics, they claimed. It was a principled commitment to the Constitution. Senator Sessions, for his part, was unambiguous about his stance.

“One of the many reasons why we shouldn't have a filibuster, an important one, is Article I of the Constitution. It says the Senate shall advise and consent on treaties by a two-thirds vote and simply 'advise and consent' on nominations,” he said in a 2003 floor statement. "Historically, we have understood that provision to mean -- and I think there is no doubt the Founders understood that to mean -- that a treaty confirmation requires a two-thirds vote, ...

Sessions Attacks Kagan for Lack of Legal Experience

Monday, June 28th, 2010

The Elena Kagan confirmation hearings began at 12:30 p.m. today, and Jeff Sessions, the ranking minority member on the Senate Judiciary Committee, wasted no time in attacking the nominee for having “barely practiced law.” It seems the senator is once again conveniently overlooking Ms. Kagan’s tenure as Solicitor General, her service as Associate White House Counsel, and her years in private practice - all of which is certainly very real legal experience.

Mr. Sessions also appears to have forgotten that the reason Ms. Kagan is not already a judge is that in 1999, after then-President Clinton nominated her to the U.S. Court of Appeals for the D.C. Circuit, the Judiciary Committee’s chairman, Republican Senator Orrin Hatch, refused to schedule confirmation hearings for her, effectively killing her nomination. So Republicans are now attacking Kagan for not having the experience that in fact they prevented her from gaining.

Let’s keep in mind some former justices who, like Kagan, had never served as judges prior to being named to the Court: William Rehnquist, Earl Warren, Louis Brandeis, Charles Evans Hughes, Felix Frankfurter, Hugo Black, Lewis Powell, Byron White.

Better Luck Next Time, Anti-Kagan Activists

Monday, June 28th, 2010

Earlier today, Traditional Values Coalition, Concerned Women for America, the Judicial Crisis Network, and Students for Life of America held a joint press conference to announce their opposition to Elena Kagan's confirmation to the Supreme Court.

The only problem was, as the CQ-Roll Call blog explained, that the groups held their conference outside the Supreme Court, where reporters were awaiting today's rulings, rather than where the reporters covering it were actually stationed:

Activists against Elena Kagan gathered on Capitol Hill Monday but outside the wrong building.

An hour before the Supreme Court nominee faced questions from senators, the leaders of four conservative groups stood outside the high court in protest.

"We're calling on the senate today," Andrea Lafferty of the Traditional Values Coalition began. "They are going to be accountable for the questions they ask or don't ask."

One problem: The backdrop Lafferty and the others chose was the court, not the Capitol. The court reporters who were around focused on a competing press conference about the morning's court rulings .

Most of the cameras focused on Lafferty's group were those of tourists -- not the press.

"Why are they protesting here?" one passerby asked a friend. "She's ...

GOP Can’t Make Up Its Mind About “Results Oriented Judging”

Monday, June 28th, 2010

The GOP Senators are echoing its same tired themes, characterizing Kagan as a political lawyer and suggesting that she would engage in “results-oriented judging.”

Though predictable, the hypocrisy is nonetheless astounding. These are the same senators who accepted Roberts’ “balls and strikes” song and dance with a wink wink and have done nothing to address – let alone denounce – the Roberts Court’s decision in Citizens United: the most results-oriented decision in decades.  As Senator Feingold correctly stated in his statement, in that decision, the Roberts Court reached out to change the landscape of election law in the most unnecessary and extreme way and elevated the rights of corporations over that of ordinary citizens. 

Republican Senators need to prove their real opposition to results-oriented judging and do something to fix Citizens United.

Sessions’ Dubious Sources

Monday, June 28th, 2010

In Sen. Session’s opening remarks at the Kagan hearings, he lambasted her for association with so-called “activist” judges—including revered civil rights defender Thurgood Marshall, the widely respected Abner Mikva, and the Republicans' new, desperate talking point, Israeli judge Arahon Barak.

Sessions’ choice of words was interesting:

She clerked for Judge Mikva and Justice Marshall, each a well-known liberal activist judge. And she has called Israeli Judge Aharon Barak-who has been described as the most activist judge in the world-her hero.

Let’s take a look at who has been describing Judge Barak as the “most activist judge in the world”:

On Wednesday, Judge Robert Bork, whose own Supreme Court nomination in 1987 resulted in a Senate vote against confirmation, said Judge Barak “may be the worst judge on the planet, the most activist,” and argued that Ms. Kagan’s admiration for him is “disqualifying in and of itself.”

Yes, that’s Judge Robert Bork, the ultra-conservative whose Supreme Court nomination was sunk 23 years ago, and has been going to bat against Democratic Supreme Court nominees ever since.

In fact, Barak has done his so-called “activist judging” in a country with no written Constitution, and has received praise from conservative Supreme Court ...

A Victory For Religious Liberty

Monday, June 28th, 2010

In today's 5-4 decision in Christian Legal Society v. Martinez, the Supreme Court correctly ruled that a publicly funded law school need not provide funding and recognition to a campus group with policies that discriminate based on religion and sexual orientation.

The University of California, Hastings College of Law, is a public institution with a viewpoint-neutral policy of recognizing and providing some funding to official student organizations, as long as the groups open their membership to all comers regardless of their status or beliefs. The campus Christian Legal Society (CLS) denies voting membership to those who do not subscribe to its religious beliefs, including those which condemn sex outside of heterosexual marriage. Because the CLS's discrimination on the basis of religion and sexual orientation violates the school's "all comers" policy, Hastings denied them official recognition.

All student groups, the CLS included, are subject to the same rules. But the CLS demanded – and the four arch-conservative Justices would have given them – a special favored status denied to other groups: the right to the funds and benefits of recognition from a public institution, along with an exemption from the rules that apply to any other group seeking those funds ...

Court rules against Christian group in discrimination case

Monday, June 28th, 2010

The Supreme Court has ruled against a Christian campus group that sued after a California law school denied it official recognition because the student organization limits its core membership to those who share its beliefs on faith and marriage.

At issue was the conflict between a public university’s anti-discrimination policies and a private group’s freedom of religion and association.

Read more.

EFF Argues Against Mass Copyright Infringement Lawsuits in Wednesday Hearing

Monday, June 28th, 2010

Washington, D.C. - On Wednesday, June 30, at 2:15 p.m., a federal court in Washington, D.C., will hear oral argument from the Electronic Frontier Foundation (EFF) about dividing up the mass copyright infringement lawsuits that improperly and unfairly target thousands of BitTorrent users.

A Washington, D.C., law firm calling itself the "U.S. Copyright Group" (USCG) has filed "John Doe" lawsuits on behalf of seven filmmakers that implicate well over 14,000 anonymous individuals in alleged unauthorized downloading of independent films, including "Far Cry" and "The Hurt Locker." EFF and co-amici Public Citizen and the American Civil Liberties Union (ACLU) Foundation contend that these suits improperly lump thousands of defendants together, a shortcut that deprives the defendants of fair access to individual justice. In court on Wednesday, EFF Senior Staff Attorney Corynne McSherry will argue that USCG has not offered enough evidence of a relationship between the defendants to justify suing them together.

The stakes are high for anyone identified in USCG's slipshod cases. USCG's strategy appears to be to threaten a judgment of up to $150,000 per downloaded movie -- the maximum penalty allowable by law in copyright suits and a very unlikely judgment in cases arising from a single, noncommercial ...

The Gift of Voice and a Legacy to Uphold

Monday, June 28th, 2010

Conable Scholarship recipient Aubrey Madler will be blogging her thoughts about the ALA Annual Conference throughout the week.  This is the third installment.

Several days in and I have exhausted myself—that must a good sign, right?

I heard several times this week—including Sunday morning’s session about a high profile book challenge, and in the afternoon session regarding self-censorship— that it is easy to talk or read about things that are easy—things that are accepted by the majority. Yet, the First Amendment helps us work through topics and issues that may not be so comfortable to accept.  It gives the minority a voice—a chance to be heard and understood. How incredible is that? Isn’t this the basis of a democracy? Libraries play such an important role in giving the minority the gift of a voice and in helping them to share this voice so that they may be understood.

After a full day of sessions, I had the chance to meet Irene and Ted Conable, wife and son of the late Gordon M. Conable, who were both so welcoming and generous—after all, they are the reason I am here. They affectionately reminisced about their life with “Gordie”, whom I ...

Monday IF activities at ALA Annual Conference

Monday, June 28th, 2010

Here are today’s intellectual freedom-related activities at the ALA Annual Conference in Washington, DC:

  • 8:00-10:00 a.m. IFRT II, the second business meeting of the Intellectual Freedom Round Table, Renaissance Washington, Room 3
  • 10:30 a.m.-Noon, IFC/COL program, Privacy, Libraries, and the Law, featuring Leslie Harris, Lillie Coney, and Anne Klinefelter. Washington Convention Center, Room 146B.
  • 1:30-3:30 p.m., IFC/Association of American Publishers program, Blasphemy! When Religious Values Clash with Intellectual Freedom Values, featuring Irshad Manji and Paul Sturges.  Washington Convention Center, Room 206.
  • 4:00-5:30 p.m., IFC III, the third business meeting of the Intellectual Freedom Committee, Washington Convention Center, Room 204A.
  • 6:30-9:30 p.m., Merritt Fund 40th Anniversary Gala, Folger Shakespeare Library.

High court turns away both sides in tobacco fight

Monday, June 28th, 2010
Action prevents Obama administration from seeking industry money to fund national campaign to curb smoking.

Court won’t hear appeal of newsletter prosecution

Monday, June 28th, 2010
Investment-research publication reported a statement, later denied, about a stock; news organizations say prosecution violates First Amendment.

La. governor vetoes bill to open oil-spill records

Monday, June 28th, 2010
In veto letter, Bobby Jindal says legislation would have hurt state's position in future litigation against BP.

N.M. appeals court rules against state GOP in records dispute

Monday, June 28th, 2010
Judges find state properly redacted drivers' names, addresses from documents provided in response to records request about illegal immigrants who received driver's licenses.

Christian group can’t bar gays and get funding

Monday, June 28th, 2010
Court splits 5-4; majority found student legal society's First Amendment rights weren't violated by California college's decision.

Spotted! Banned Books Week t-shirt at Annual

Sunday, June 27th, 2010

BBW Shirt

SPOTTED! Phillip Ford models the 2010 Banned Books Week t-shirt, provided as a gift from his Henrico Public Library colleague Lisa Kroll. The shirts and other Banned Books Week material have been a huge hit at #ala10 – much has already sold out! But never fear – just go to the ALA Online Store to pick up your robot-themed merchandise today!

A Banned Book: 50 Years of Reading Enjoyment

Sunday, June 27th, 2010
50th Anniversary Celebration of "To Kill a Mockingbird" Nancy Pearl interviews Mary McDonagh Murphy

50th Anniversary Celebration of "To Kill a Mockingbird" Nancy Pearl interviews Mary McDonagh Murphy

Conable Scholarship recipient Aubrey Madler will be blogging her thoughts about the ALA Annual Conference throughout the week.  This is the third installment.

Of everything I saw and heard on Saturday, what still sticks with me the following morning is the experience listening to Nancy Pearl’s interview with Mary McDonagh Murphy. This event was in celebration of the 50th anniversary of Harper Lee’s (Nell), “To Kill a Mockingbird and the book and documentary Mary created in its honor. There was not a dry eye in the auditorium as reflections from Oprah Winfrey, Rosanne Cash, and Tom Brockaw were projected on the screens. I heard them describe reading this novel as young adults, then again at later phases in life, they got deeper and deeper into the novel’s experience. I couldn’t help thinking over and over again, what we would miss if we did not have the freedom to create such works, publish them, and experience their personal meaning generation after generation.

Similar thoughts were later reiterated during my conversations with fellow right-to-read advocates when we identified that reading a novel as a youth is ...