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Tag: SCOTUS

Oh, This Will Not Go Well

Interesting post by Nathan Newman at TPM Cafe on what happens when the Supreme Court’s new no-knock doctrine meets the Castle doctrine. It’s short, so here it is in its entirety:

Two conservative legal doctrines are on a collision course. Today, the rightwing majority upheld the right of the police to enter homes without warning.

But recently, states like Florida have been passing NRA-backed “Castle Doctrine” bills that give homeowners the right to assume an unknown intruder is there to do bodily harm and can therefore be shot without any obligation by the homeowner to establish that the intruder is actually a danger.

Now, the text of such Castle Doctrine laws don’t actually protect you if you shoot a police officer, but if the police don’t identify themselves when they enter a home, it’ll create a pretty bad legal tangle for juries when defendants can claim they thought the officer was an unknown intruder against whom they had the right to shoot on sight.

Cops are generally pretty pragmatic about avoiding getting shot, which is why they usually knock and announce, even if they don’t give the people in the building a chance to think about what’s happening. Hell, they even have a cop knock. Cops are usually in favor of gun control, regardless of how conservative they are on other issues.

So, expect to see one of these doctrines giving way. My guess is that cops in Castle Doctrine states will be knocking even as they work on getting those laws repealed.

Posted in Law

Opposing Alito

The nomination is over and done with, but I wanted to share a particularly interesting letter that a collegue of my dad’s wrote to Sen. Arlen Specter. I’m posting the letter with permission, but the author has requested that I not use his name. I’ve also taken out identifying information. It’s a great piece; I hope you all take the time to read it:

Read More…Read More…

Senate Judiciary Committee Votes on Alito

The committee split along party lines, with the 10 Republicans voting for and the 8 Democrats voting against.

Only one Democratic Senator, Ben Nelson of Nebraska, has said that he will vote for Alito when the vote comes to the full Senate. Harry Reid has promised a fight, though it’s apparently unclear whether a filibuster is still on the table.

Nominally pro-choice Republican Senator Arlen Specter said that “Judge Alito had convinced him that he does indeed regard the 1973 Roe v. Wade decision as “settled law” not easily overturned.”

Let’s see how Olympia Snowe, Susan Collins and Lincoln Chaffee vote. I’m sure their constituents would not be happy to see their Senators putting someone on the Court who would overturn Roe.

Posted in Uncategorized

Oregon’s Death with Dignity Law Upheld

The U.S. Supreme Court ruled today that the Bush administration crossed the line when it punished doctors who helped terminally ill patients end their lives. This is a victory for right-to-die advocates and federalists alike. I should be clear that I’m not exactly a card-carrying member of the Federalist Society, but nonetheless, we really shouldn’t be hearing any whining about this one from those who argue “let the states decide” on hot-button issues like abortion and same-sex marriage. Here, the state decided. The federal government tried to step in, and the Supreme Court told them to back off. But since a lot of them probably won’t like the result of the decision, I fully expect to hear a bunch of hemming and hawing from the “states’ rights” right.

There certainly isn’t a unified position on the right to die on either the left or the right, but the Terri Schiavo case made it fairly clear that the American people don’t want the government poking its nose in their most private of personal choices — the right to end their own lives. This issue is important to me for two reasons: First, and most obvious, its future relevance in my own life. At some point, most people will have to make a life-or-death decision about themselves or a loved one. I don’t want to be hooked up to machines if I’m brain-dead, or forced to live out extremely painful and miserable months as an elderly woman with a terminal disease. I know my mother doesn’t want to either, and she’s made that wish exceptionally clear to my sister and I, telling us (and I kid you not) that she will come back and haunt us if we leave her in a position where she’s living as a vegetable. I really don’t want to be haunted by my mother. Second, the right to die is a burgeoning part of privacy rights law, and I hope that the court will continue to be consistent and to maintain a standard that affords individuals dignity and autonomy. This particular case is important because it evaluates the power of the Attorney General to expand the loose wording of a Congressional act in order to interfere with a state-legalized medical procedure.

While the attorney general has authority to combat drug abuse, his limited powers under the law do not include the ability to declare illegitimate “a medical standard for care and treatment of patients that is specifically authorized under state law,” the majority held, in emphasizing that the federal government cannot simply override state law on medical issues.

Now, should Roe ever be overturned — and let’s hope that doesn’t happen, but we should prepare for the worst — it’s important to establish a standard which says that specific state standards for medical care trump vaguely-worded Congressional acts. So according to what the court said here, it would logically follow that, should legal abortion become a state-by-state issue, an attorney general could not find providers who dispence RU-486 and prosecute them under this or a similar act.

In an interesting dissent from Scalia (surprise surprise), we get this little gem:

“If the term ‘legitimate medical purpose’ has any meaning, it surely excludes the prescription of drugs to produce death,” Justice Scalia wrote.

Justice Scalia, citing papers filed on behalf of the federal government, wrote that “virtually every medical authority from Hippocrates to the current American Medical Association confirms that assisting suicide has seldom or never been viewed as a form of ‘prevention, cure, or alleviation of disease.’ ” The entire legitimacy of physician-assisted suicide “ultimately rests, not on ‘science’ or ‘medicine,’ but on a naked value judgment,” he wrote.

Not to be crass here, but it sure does alleviate it.

I also like how “science” and “medicine” are terms worthy of skepticism-quotes. And we should point to the fact that our own Scalia, Mr. Originalist himself, believes that, since there is nothing in the Constitution barring the states from creating right-to-die laws (and, he believes, nothing in the Constitution requing the federal government to grant its citizens the right to physician-assisted suicide), that this decision should rest on a naked value judgment. Which is an interesting point, coming from him. It’s quite unlike his views on, say, Roe v. Wade and other privacy-rights cases, which according to Scalia also lack basis in the Constitution, but (unlike this case) should therefore be left up to the states because that is what federalism requires. And he prides himself on having a consistent judical philosophy based in originalism? I’d encourage him to check out the Tenth Amendment.

Another telling matter in this case: The other two dissenters were Clarence Thomas (who seems to rarely have the time to actually write a Supreme Court opinion, and usually just sticks his name next to Scalia’s) and newbie John Roberts — another “originalist.” This doesn’t bode particularly well.

It’s also worth looking at what the Oregon Death with Dignity Act actually involves, as I’m sure we’ll be hearing all kinds of alarmism about how the Grim Reaper has come to Oregon and this is another sign of the Culture of Death and our impending self-destruction. Oregon isn’t going around knocking off sweet old ladies as they get off the bus. It’s offering the terminally ill a chance to avoid suffering, have final closure with their families, and die according to their own wishes. It’s been used 326 times to prescribe patients with lethal doses of medication; 208 of those patients have actually taken the medication and ended their own lives.

Oregon voters approved the state’s Death With Dignity Act twice, and it took effect in 1997. It sets out specific, detailed procedures for patients who want to end their lives, and for doctors who want to help them. Among other requirements, a patient must have a life expectancy of less than six months and must be mentally competent. The patient must also be advised of all alternatives, like hospice care and pain management. And the doctor who prescribes the drugs may not administer them.

This seems very reasonable to me. I look forward to hearing a decent argument against it.

Solomon Goes on Trial

This case is an interesting one. The Solomon Amendment requires that colleges and universities allow military recruiters on campus in order to receive federal funding. The problem, though, is that many schools — including NYU Law — have anti-discrimination measures which bar discriminatory employers from recruiting on campus. So, for example, if a particular law firm had a policy of only hiring whites, they wouldn’t be allowed to come and recruit.

The JAG Corps, which recruit law students, operate under the same discriminatory “don’t ask, don’t tell” policy as the rest of the U.S. armed forces. This policy clearly violates NYU’s anti-discrimination standards, the same way a law firm that had a “don’t ask, don’t tell” policy for non-Christians would be in violation.

NYU has been at the heart of this issue for decades, as it was the first law school to include sexual orientation in its anti-discrimination policy. A decade later, the Association of American Law Schools required that this policy be applied at all accredited institutions. Now, an NYU alum is one of the people arguing Rumsfeld v. FAIR, the case against the Solomon Amendment, and NYU Law is one of the only FAIR-participating schools that is willing to be publicly named (other schools joined on anonymously; still others joined under “faculty of,” so that the university itself isn’t responsible).

Some argue that if a university’s anti-discrimination values are so strong, they should simply waive the federal funds and keep recruiters off campus. But it’s not that simple. When the Solomon issue first came up, NYU Law made the decision to forgo the federal money in order to continue their policy of non-discrimination. But the amendment was then expanded so that if one branch of a particular university barred recruiters, the entire university lost federal funding — so if the law school didn’t accept the federal funds, the entire university would miss out. This, obviously, is a problem at a school like NYU, where the law school is better funded by directed alumni donations than the rest of the university. And we aren’t talking about pocket change here — Harvard and Yale, for example, would each lose $300 million if they didn’t comply with Solomon.

Others would say that the school should leave it up to individual students to decide which organizations they interview with. But by allowing a group to recruit on campus, the school is tacitly approving it. Should we allow “whites-only” companies to recruit here, and let students make up their own minds? I would argue that a consistent anti-discrimination policy sends a tough message to employers that discrimination will cost them — indeed, anti-discrimination policies were key in integrating women and people of color into the workforce (although it’s worth noting that law firms, especially the big ones, are still run primarily by white guys).

The military claims that they’re desperate for recruits, and interviewing on campus is key to their survival. That’s all fine and good, but if you’re so in need of good employees, stop discriminating against gays and lesbians. You’ll have a whole new pool of people to recruit from, and you won’t have to deal with progressive universities shutting you out, or students protesting your presence on campus (last year, when the JAG recruiters came, OUT-LAW members and other law students protested so loudly that the recruiters left early).

But this is all just background. The real issue in the case is the First Amendment rights of universities, specifically freedom of speech and association. And unfortunately, it looks like it’s a losing one. The government is making the argument that raising a military is a compelling Constitutional interest, and that raising a military requires recruitment. They say that universities are welcome to use their right to free speech and association by barring recruiters from campus; they aren’t being required to have the military there, they just stand to lose federal funds if they don’t. The FAIR attorneys argue that, when we’re talking about hundreds of millions of dollars that the university needs, the policy is deeply coercive — particularly since the entire university loses funding if even a single, generally separate branch like the law or medical school refuses recruiters. But from the Supreme Court justices’ responses so far, it doesn’t look like this argument is getting very far — and it’s being argued that it could set a dangerous precedent for other accept-it-or-lose-funding federal rules, like No Child Left Behind and Title IX.

I’m obviously hoping that law schools will retain the right to reject discriminatory recruiters, without financially punishing the entire university. We’ll see what happens. I’ll be writing more about this in the coming days.

WSJ, SCOTUSblog, the blog of the American Constitution Society, and Law Dork have more.